Select Committee on Culture, Media and Sport Minutes of Evidence


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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