Examination of Witnesses (Questions 320-329)
RT HON
TESSA JOWELL
MP, DR DAVID
GAIMSTER AND
MR ALAN
DAVEY
11 NOVEMBER 2003
Q320 Chairman: So what on earth is
the use of having a Spoliation Advisory Panel to make a recommendation
if the recommendation cannot be implemented?
Dr Gaimster: I understand what
you are saying, Chairman. What it has been recommending in several
of these cases is resolution through compensation, and I understand
that this has happened in one case to date, so they are exploring
recommending other options for resolving claims and compensation
has been taken up in one example in the last few years. There
have been other options for resolution. It is not just about the
return.
Q321 Chairman: That was not an option
that the Government itself looked at. The Government did add,
and I have got in front of me what you told us, "The Committee
will be aware that on January 18 the first report of the Spoliation
Advisory Panel was published. The panel recommended that an ex
gratia payment should be made to the former owners of a painting
in Tate Britain of which the owners lost possession during the
Nazi era. The Government immediately accepted and implemented
this recommendation". Fine, but that is not what I am asking
about.
Tessa Jowell: Chairman, let me
try and deal with this. You are absolutely right that there was
an expectation that the necessary legislation would be taken.
The Spoliation Advisory Panel was set up and part of its job in
advising me and acting in considering specific cases of spoliated
property is to make clear when their powers are inadequate to
the task before them. They have not done that, and so in the absence
of a recommendation in practice and through the exercise of their
functions as a panel that legislation is necessary, we have not
sought to bring legislation forward. Were they to do so then we
would obviously seek to bring legislation forward.
Q322 Chairman: Secretary of State,
in March 2001 you said you were exploring the possibility of bringing
legislation forward. You were going to do it by an order under
the Regulatory Reform Bill which was then going through Parliament.
It was acknowledged then, under your predecessor (you were not
yet the Secretary of State), that the only way this could be done
would be by a change in the law. The Spoliation Panel under Professor
Palmer is without doubt one of the most elegant organisms ever
created by government. That is not the point. The point is this,
that the British Museum told us three and a half years ago that
it could only divest if the law were changed because statute did
not permit it to divest even if it wished to. Your department
acknowledged that that was so by saying that it was exploring
the possibility of changing the law through a statutory instrument
under a bill going through Parliament. That did not happen. If
the Spoliation Advisory Panel were to make a recommendation it
would be a futile recommendation because the British Museum would
still not be able to divest. What I am simply saying is that,
three and a half years after we made that recommendation, two
and three-quarter years after the Government wished to commit
itself to legislation, nothing has happened.
Tessa Jowell: Chairman, it is
simply not true to say that nothing has happened. The Spoliation
Advisory Panel has been established and is undertaking its work.
I misled you in saying that Professor Palmer had chaired it. It
is in fact Sir David Hirst who chairs the Spoliation Advisory
Panel. Subsequent advice indicated that the proposal was far too
contentious to be dealt with by using a regulatory reform measure,
and so I have received no further advice from Sir David Hirst
or from my officials that legislation is necessary in order to
facilitate the work of the Spoliation Advisory Panel. I accept
your point that were a case to arise in the context of the British
Museum or any other of our national museums where the trustees
are precluded from de-accessioning items in their collection (they
can make loans or whatever) and in those circumstances that was
an obstacle to justice being delivered to the family or the descendants
of somebody whose property was removed and found itself in the
British Museum post the Nazi regime, then of course we would do
so. There has been one case so far in relation to a particular
painting and that was resolved by an ex gratia payment.
I gather that there is another matter before the panel at the
moment which involves some drawings in the British Museum. The
question is whether or not the return of the drawings is the desired
outcome or whether an ex gratia payment is the desired
outcome. My argument to you is that first of all the original
vehicle that was proposed was subsequently established to be an
inappropriate one and, secondly, as I am sure you would accept,
you legislate when there is no agreement or regulation or code
of practice, all the other non-legislative instruments that we
use, that would be effective. That is not yet the case in relation
to the work of the Spoliation Advisory Panel.
Q323 Chairman: I was never under
the impression that this commitment to legislate was based upon
waiting for an example. Mr Wyatt has gone to deal with identity
cards. Let us look at the situation. You say that there is a case
of drawings, that it has not yet been established whether those
whose ownership of the drawings seems to have been established
want financial compensation or want the return of the drawings.
If they wanted the return of the drawings you would not be able
to do it, would you?
Tessa Jowell: The trustees could
loan them. I would like to write to you with a considered view
on this but they are not wholly hamstrung from preventing the
items from leaving the museum. They could certainly loan them,
presumably pending legislation. Let me give you considered advice
on that. Chairman, I would say to you this, that your Committee
made recommendations. The Government in the previous Parliament
and my predecessor provided you with a response. It is a response
which in the passage of time has been varied because (a) it was
considered in the circumstances not to be appropriate, and (b)
there are other means at our disposal. The general view is that
the Spoliation Advisory Panel is working well and has not encountered
the lack of legislation as a limitation on its ability to work.
Q324 Chairman: But that is not what
your department said in its response to our report.
Tessa Jowell: It may not have
been, Chairman, with great respect, but you also have to allow
for the fact that circumstances change, and circumstances changed
in 2001. You had a new Secretary of State who took a different
view. You had the establishment of the Spoliation Advisory Panel
which has now learnt from experience and to whom I look for advice
on these matters. They have not advised me that they need legislation
in order to do their work. If they advise me that they do then
I will obviously do everything I can to put that power in place.
Q325 Chairman: When you say circumstances
have changed, one circumstance has not changed, not relating to
what the Government committed itself to, though it did not carry
out its commitment. What was said in paragraph 19 of your second
response in March 2001 was this: "There has been general
agreement from those consulted that the removal of legislative
barriers to restitution should be sought". That was not a
change of policy from you as Secretary of State. You cannot change
the general agreement from those consulted. They said it should
happen. The fact is you have not done it and the fact is that
we might as well not have published that last report for any scintilla
of action that has been taken by anybody as a consequence of that
report, and I have got a strange feeling that we might as well
not publish a report on this inquiry either.
Tessa Jowell: Chairman, I really
take exception to that. There is a further point which experience
varied in that at the time when you were last considering this
a flood of claims was expected. That never materialised and, as
I have indicated to you, the Spoliation Panel has considered only
five cases. Those five cases are considered to be adequately dealt
with within the existing powers available to the Committee. To
say that my department has not acted on your report is simply
not the case. I can take you recommendation by recommendation
through the action that has been taken. You may not like the judgement
that has been made in relation to the recommendations on spoliation
but as Secretary of State I am responsible for making those judgements
and have done so. You will no doubt want to make comment about
that in your subsequent report arising from this inquiry, but
to suggest that we have not taken seriously the recommendations
that this Committee made is simply a misrepresentation of the
action that my department has taken.
Q326 Chairman: I do not want to get
into a wrangle with you, Secretary of State. All I can say is
that where you actually committed yourselves to action, and I
take it that the department is a continuing entity whoever is
the Secretary of State, those actions have not been taken.
Tessa Jowell: No, those actions
have been varied. It is not as if, through some act of dereliction
and negligence, nothing has been done. The position was reconsidered
and a different conclusion was reached in the light of different
evidence that came before those who are concerned with this from
that which was expected, namely, that a very large number of submissions
was expected. They have not materialised in practice and I am
sure you will accept that it is important for parliamentary time
to be used in a way which is appropriate and that government intervention
is proportionate.
Q327 Chairman: As I say, I am not
going to get into a wrangle with you, but the fact is that in
the response of March 2001 it was said that parliamentary time
would be used: "It [the Government] is also exploring the
possibility of achieving this by means of a Regulatory Reform
Order under the Regulatory Reform Bill currently progressing through
Parliament". There is a parliamentary opportunity. Your department
indicated that it was going to take advantage of the parliamentary
opportunity and it did not do it.
Tessa Jowell: And subsequent consideration
concluded that that parliamentary opportunity would be inappropriate.
Further consideration judged that legislation was not necessary
in light of the level of demand.
Q328 Chairman: I accept what you
say. Dr Gaimster made it absolutely clear that if divesting were
to take place legislation would be required. If legislation were
required you would have to find a place in the legislative programme.
You cannot even promise me that there is a place in the legislative
programme for the bill you spoke about yesterday afternoon.
Tessa Jowell: Because I cannot
reveal, even to you, Chairman, the contents of the Queen's Speech.
Q329 Chairman: Not even to me. I
am just a humble backbencher.
Tessa Jowell: I think that is
a judgement that only you would recognise.
Chairman: Thank you.
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