Memorandum submitted by Lord Inglewood,
Chairman of the Reviewing Committee on the Export of Works of
Art and Objects of Cultural Interest
SUMMARY OF
MAIN POINTS
This paper sets out the Reviewing Committee's
concerns on the operation of the existing arrangements intended
to protect the national heritage by ensuring that objects of the
highest quality which have been found to be of national importance
do not, in general, get exported. We believe that there is substantial
evidence that these are not working as they should, above all
due to a lack of available funding.
The number and value of items of national importance
which have been granted export licences after a decision on the
licence was deferred to give public institutions or private individuals
in this country the opportunity to purchase them has far exceeded
the number and value of items that have been retained in the United
Kingdom, as is shown in the tables attached to this paper. This
generally occurred because there were no serious expressions of
interest from UK purchasers. In the 12 months covered by our recently
published annual report for 2004-05, the Secretary of State for
Culture, Media and Sport deferred decisions on items worth £46.4
million in order to give public institutions and private individuals
in this country the opportunity to purchase them. The value of
such items purchased to date is only £5.6 million (12% of
£46.4 million) whereas the value of items for which export
licences were ultimately granted to date is £30.2 million
(65% of £46.4 million).
The rules under which the Heritage Lottery Fund
operates appear to have the effect, in some cases, of defeating
its ability to save objects of national importance. The National
Heritage Memorial Fund is potentially a better vehicle of last
resort, but does not have enough money for this purpose and has
many other claims on it.
Possible solutions to the problem of funding
the purchase of objects of national importance would be through
increasing the grant made to the National Heritage Fund (beyond
the £10 million planned for 2007-08) or through the establishment
of a National Acquisitions Fund. We have suggested both possibilities
to the Government.
We are not suggesting that all items of national
importance should always remain in this country, but the fact
that such a high proportion are not retained indicates a serious
problem and we look to the Government to take action.
HISTORY OF
EXPORT CONTROLS
IN THE
UK
1. The reasons for controlling the export
of what are now known as cultural goods were first recognised
in the UK at the end of the 19th and beginning of the 20th centuries.
Private collections in the United Kingdom had become the prey
of American and German collectors and institutions and it was
apparent that many were being depleted and important works of
art sold abroad at prices in excess of anything that UK public
collections or private buyers could afford. It was against this
background that the National Art Collections Fund was established
in 1903 to help UK national and provincial public collections
to acquire objects that they could not afford by themselves.
2. Until 1939, the United Kingdom had no
legal controls on the export of works of art, books, manuscripts
and other antiques. The outbreak of the Second World War made
it necessary to impose controls on exports generally in order
to conserve national resources. As part of the war effort, Parliament
enacted the Import, Export and Customs Powers (Defence) Act 1939,
and in addition the Defence (Finance) Regulations, which were
not intended to restrict exports but to ensure that, when goods
were exported outside the Sterling Area, they earned their proper
quota of foreign exchange. In 1940, antiques and works of art
were brought under this system of licensing.
3. It was in 1950 that the then Labour Chancellor
of the Exchequer, Sir Stafford Cripps, established a committee
under the Chairmanship of the First Viscount Waverley "to
consider and advise on the policy to be adopted by His Majesty's
Government in controlling the export of works of art, books, manuscripts,
armour and antiques and to recommend what arrangements should
be made for the practical operation of policy". The Committee
reported in 1952 to RA Butler, Chancellor in the subsequent Conservative
administration, and its conclusions still form the basis of the
arrangements in place today.
CURRENT EXPORT
CONTROLS
4. The export controls are derived from
both UK and EU legislation. The UK statutory powers are exercised
by the Secretary of State under the Export Control Act 2002. Under
the Act, the Secretary of State for Culture, Media and Sport has
made the Export of Objects of Cultural Interest (Control) Order
2003. Export Controls are also imposed by Council Regulation (EEC)
No 3911/92 as amended, on the export of cultural goods. The control
is enforced by HM Revenue and Customs on behalf of the Department
for Culture, Media and Sport (DCMS). If an item within the scope
of the legislation is exported without an appropriate licence,
the exporter and any other party concerned with the unlicensed
export of the object concerned may be subject to penalties, including
criminal prosecution, under the Customs and Excise Management
Act 1979.
THE REVIEWING
COMMITTEE ON
THE EXPORT
OF WORKS
OF ART
AND OBJECTS
OF CULTURAL
INTEREST
5. An independent Reviewing Committee on
the Export of Works of Art was first appointed in 1952 following
the recommendations of the Waverley Committee. It succeeded an
earlier Committee of the same name established in 1949, comprising
museum directors and officials, which heard appeals against refusals
and, from 1950, all cases where refusals were recommended. In
2005, the Committee's title was amended to Reviewing Committee
on the Export of Works of Art and Objects of Cultural Interest
and its terms of reference were revised, following the Recommendations
of the Quinquennial Review on the Reviewing Committee. The Committee's
terms of reference are:
(i) To advise on the principles which should
govern the control of export of objects of cultural interest under
the Export Control Act 2002 and on the operation of the export
control system generally;
(ii) To advise the Secretary of State on
all cases where refusal of an export licence for an object of
cultural interest is suggested on grounds of national importance;
(iii) To advise in cases where a special
Exchequer grant is needed towards the purchase of an object that
would otherwise be exported.
6. The Committee is a non-statutory independent
body whose role is to advise the Secretary of State for Culture,
Media and Sport whether a cultural object which is the subject
of an application for an export licence is of national importance
under the Waverley criteria (so named after Viscount Waverley),
which were spelt out in the conclusions of the Waverley Report.
The Committee consists of eight full members, appointed by the
Secretary of State for Culture, Media and Sport, seven of whom
have particular expertise in one or more relevant fields (paintings,
furniture, manuscripts etc), and a Chairman.
THE WAVERLEY
CRITERIA
7. The Waverley criteria are applied to
each object the Committee considers:
— Waverley one. Is it so closely connected
with our history and national life that its departure would be
a misfortune?
— Waverley two. Is it of outstanding
aesthetic importance?
— Waverley three. Is it of outstanding
significance for the study of some particular branch of art, learning
or history?
These categories are not mutually exclusive
and an object can, depending on its character, meet one, two,
or three of the criteria.
8. The Committee reaches a decision on the
merits of any object which the relevant expert adviser draws to
its attention.
9. A hearing is held at which both the expert
adviser and the applicant submit a case and can question the other
party. The permanent Committee members are joined for each hearing
by independent assessors (usually three), who are acknowledged
experts in the field of the object under consideration. They temporarily
become full members of the Committee for the duration of consideration
of the item in question.
10. If the Committee concludes that an item
meets at least one of the Waverley criteria, its recommendation
is passed on to the Secretary of State. The Committee also passes
on an assessment of the item's qualities and a recommendation
as to the length of time for which the decision on the export
licence should be deferred, to provide UK institutions and private
individuals with a chance to raise the money to purchase the item
to enable it to remain in this country. It is the Secretary of
State who decides whether an export licence should be granted
or whether it should be deferred, pending the possible receipt
of a suitable matching offer from within the UK. Where an owner
turns down (or makes clear his/her intention to turn down) a matching
offer from a public institution or from a private individual who
has provided a signed undertaking to guarantee reasonable access
and satisfactory conservation and security arrangements, the Secretary
of State will normally refuse a licence.
11. Since the Committee was set up in 1952,
many important works of art and objects of cultural interest have
been retained in the UK as a result of its intervention.
THE RECENT
OPERATION OF
THE CONTROLS
ON THE
EXPORT OF
WORKS OF
ART AND
OBJECTS OF
CULTURAL INTEREST
IN THE
UNITED KINGDOM
12. The figures on the attached tables at
annex A analyse the outcome of the Reviewing Committee's work
since 1995-96.
ADEQUACY OF
AVAILABLE FUNDING
TO RETAIN
"WAVERLEY ITEMS"
IN THE
UNITED KINGDOM
13. The nature of the Waverley system is
that it is a tripwire, as opposed to a mandatory right of pre-emption.
If an item meets any of the Waverley criteria, it generally follows
that every effort should be made to retain it because of the serious
depletion to our national heritage that its departure would represent.
An owner quite rightly expects to receive market value for it.
It is a matter of serious concern that there should be a consistent
failure to find the necessary funds to purchase "Waverley"
items.
14. By their very nature such items are
of interest to an international as well as a national audience.
Their value is also moving ever upwards, often ahead of inflation,
and ahead of the run-of-the-mill items of their type. In the period
covered by our report for 2003-04, two of the nine items placed
under deferral were granted export licences. In the period covered
by our recently published report for 2004-05, export licences
were granted for 10 of the 25 items placed under deferral. This
generally occurred because there were no serious expressions of
interest from UK purchasers, and this despite the wide range of
funds currently available, some lottery, some charitable and some
private. We are very anxious about this and have been for some
time.
15. Given the stated purpose of the country's
system of export control, and in particular the work of the Reviewing
Committee, we find this state of affairs inconsistent both with
our remit and with Government policy about access to and preservation
of the heritage.
16. In the case of "Waverley"
items, the Secretary of State places an embargo on the export
of an item because its national importance makes its export a
misfortune. We would therefore urge that greater efforts be made
by all concerned to ensure that such items are not lost to the
nation in future because of lack of funding.
17. We understand the Government's view
is that the Heritage Lottery Fund (HLF) is the principal source
of money to be used to acquire objects of cultural interest. Yet
the rules under which the Lottery operates appear to us, in some
cases, to have the effect of defeating its ability to save "Waverley"
items. This view, we understand, is shared by the Heritage Lottery
Fund with whom we have discussed the point. The Lottery application
system has to address a wide range of heritage projects. The consequence
is that the nature of the requirements stipulated can frustrate
an application for support for the purchase of an object, which
can lead to the export of that object.
18. In our view, and it is one shared by
others, the National Heritage Memorial Fund offers a potentially
better vehicle of last resort. The advantage is that its application
system can deal more effectively with the specific business of
the acquisition of works of art and objects of cultural interest.
The flaw in this approach is that at present the Fund does not
appear to have enough money to achieve this.
19. We recognise that the Government is
going to double its grant to the National Heritage Memorial Fund
from 2007-08. This is welcome news, but equally it needs to be
appreciated that the additional money, £5 million, by itself
could not buy any of the three most expensive items which were
exported after a deferral of an export licence during 2004-05
(Francis Bacon's Study after Velasquez, the set of 19 watercolours,
Designs for Blair's Grave, by William Blake, and Jan Steen's The
Burgher of Delft and his Daughter). Indeed it would only buy half
of the Bacon picture.
20. The Government has made it clear that
because of the existence of the Lottery it will not provide Exchequer
Grants to "save" objects in England even though the
Scottish Executive takes precisely the opposite view in similar
circumstances. However, the Lottery, as already explained, is
not in a position to provide funds in all instances. Working on
the assumption that the Government's approach to the Lottery remains
unchanged, we believe it follows that providing sufficient funding
for the NHMF could be the central political tool to enable our
museums to acquire "Waverley" objects for their permanent
collections, if other means are unavailable. If this is not achievable,
then an alternative strategy, suggested by a number of influential
commentators, would be to consider a separately funded National
Acquisitions Fund, specifically set up to assist potential purchasers
to be proactive.
21. In our view the present arrangements
are not working as effectively as is needed and we look to the
Government for a response on this issue.
22. The Goodison Review was written by Sir
Nicholas Goodison at the request of the Treasury and was published
in January 2004. It included a number of specific and detailed
fiscal proposals which Sir Nicholas urged the Treasury to adopt
in the public interest, to help ensure that the finest, most important
works of art and cultural objects do not leave the country.
23. We have written to both the Chief Secretary
to the Treasury and the Chancellor urging them to ensure that
in future the shortage of available money is not the reason why
national treasures, as defined by the Waverley criteria, go abroad.
We deeply regret that, at the time of writing, the Treasury has
still not responded to Sir Nicholas's ideas.
CONCLUSION
24. As part of our remit to advise on the
principles which should govern the control of export of objects
of cultural interest under the Export Control Act 2002 and on
the operation of the export control system generally, we are concerned
that too many objects which are the subject of licences on which
the Secretary of State has deferred a decision are, in fact, eventually
being exported because matching offers are not forthcoming. It
is not that we believe no object found to meet the Waverley criteria
should ever go abroad; rather it is that given the system in the
UK depends upon matching offers being forthcoming, a general failure
to secure such offers has become a systemic flaw in the arrangements
taken as a whole.
25. We do not consider it is part of our
remit to advance ideas in detail as to how this shortcoming might
be dealt with: that is for others whose responsibility it is.
Rather, we wish to point out emphatically that the existing arrangements,
excellent though they are in many ways, are not working as intended
because of a shortage of money.
26. This country has put in place a set
of arrangements to ensure objects of the highest quality do not,
in general, get exported. We believe that the policy behind these
arrangements is not being implemented properly if the quantity
of such objects currently being exported remains at its present
level, and to that extent it is not working.
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