Memorandum submitted by the Commission
for Looted Art in Europe
A. SUMMARY
Provenance research as national and international
policy
1. Over the last 10 years investigating
the provenance of museum collections and loans has been a matter
of national and international public policy to ensure that our
cultural heritage is free from taint, whether arising from spoliation
or from illicit trade.
2. Publishing provenance information and
making available other information about our collections is agreed
to be an essential part of that public interest policy.
Commitment of public institutions
3. The unresolved issue of unrestituted
Nazi art loot brought many of these due diligence issues to the
fore in the 1990s, culminating in the 1998 Washington Conference
on Holocaust Era Assets at which the National Museums Directors'
Conference (NMDC) presented a Statement of Principles and Proposed
Actions. The Museums and Galleries Commission (MGC) followed suit.
4. The two Statements of Principles committed
British public collections to undertake due diligence on all loans
and acquisitions and to publish the provenance of all works of
art with tainted or uncertain provenance for the years 1933-45.
5. The museums endorsed the principle that
"a museum does not acquire or exhibit any stolen or illegally
exported works and that it acquires legal title to items accessioned
to its collections". They undertook to seek from vendors/donors/executors
or lenders the fullest possible information with regard to provenance
including for the years 1933-45.
6. In the eight years since the Statements,
several thousand works of art in our public collections acquired
since 1933 and with uncertain or tainted provenance for the years
1933-1945 have been published on the NMDC website www.nationalmuseums.org.uk/spoliation.html
The compliance of public institutions
7. However, the extent to which museums
are following the due diligence guidelines on existing/new loans
and acquisitions is unclear—informal information suggests
that they are not comprehensively followed by a number of museums
and that lenders under the Government Indemnity scheme are not
routinely asked for provenance information.
Accountability and transparency
8. Neither the spoliation due diligence
guidelines nor those created for Combating Illicit Trade,
published by DCMS in October 2005, are binding nor do they provide
for transparency and accountability in their operation. Due diligence
should become obligatory to a nationally agreed standard, with
a requirement to report relevant information on looted, illicitly
traded or stolen works of art to an independent body. Information
arising should be made publicly available.
9. The current status and operation of due
diligence by the museums, libraries and archives should be investigated,
especially with regard to research into loans (long-term and recent),
the identification of illicitly traded antiquities and the progress
of spoliation research, as well as record-keeping and reporting.
10. It should be established to what extent
the due diligence guidelines, both for spoliation and antiquities,
are being observed; who has responsibility for ensuring their
observance; what records are being kept; who is notified of any
problematic acquisitions or loans (existing or new); what action
is taken if there is a problem due to the work of art in question
being looted or illicitly traded; what problematic objects have
been identified; and what other issues have resulted from due
diligence being carried out. As regards the extent of the provenance
research yet to be carried out, it should be established how much
remains to be done and when it is expected to complete it.
10. Combating Illicit Trade recommended,
in relation to acquisition procedures, that a museum's governing
body should consider giving their audit committee, or a specially
appointed committee, or an external panel, responsibility for
checking compliance. Checking compliance in relation to all due
diligence guidelines should be formalised and an appropriate external
body given the remit.
11. Disclosure of information should be
integral to the practice of due diligence and the results published
as a matter of public interest.
12. A requirement for transparency and accountability
in the context of binding due diligence guidelines will go some
way to ensure that queries will be properly dealt with. The response
by the Victoria & Albert Museum to enquiries about a long
term loan of a looted work of art did not meet the requirements
of the NMDC Statement of Principles. Inter alia, confidence
was breached, inaccurate information provided and public policy
on claims handling obstructed. Letters requesting an explanation
of the Museum's handling of the claim eventually met with the
reply that it was "not in a position to provide a detailed
reply"—and provided none.
Responsibility to claimants
13. It should always be possible for claimants
in such situations to secure an independent investigation of a
museum's conduct.
Conflict of interest
14. Within the spoliation issue, the DCMS
Cultural Property Unit faces a conflict of interests in its three
pronged role of advising museums, advising ministers and acting
as Secretariat to the Spoliation Advisory Panel. These roles are
not compatible and it is recommended that an independent secretariat
be created for the Spoliation Panel in line with its independent
status and to provide confidence to claimants.
Proposed anti-seizure legislation
15. Both the Commission for Looted Art and
the Spoliation Advisory Committee (SAC) under the chairmanship
of Lord Justice Neuberger have expressed concern that the anti-seizure
legislation as proposed by the Government in March 2006 and which
is being fast-tracked could run counter to the purpose of due
diligence and weaken its operation. Due diligence should be enshrined
in any legislation and the need for it upheld and reinforced by
such legislation.
16. In its response to the consultation
document, the SAC stressed that any anti-seizure legislation should
not be seen as vitiating the need for due diligence. Nothing should
be borrowed which has been wrongfully taken and not restituted.
Care should be taken to ensure that the proposed legislation cannot
be used (wittingly or unwittingly) to evade the principles accepted
by the Government in relation to spoliated art.
17. It is not apparent that legislation
to provide immunity from seizure is either necessary or urgent.
Its wider consequences may undermine our commitments to the highest
ethical standards for our collections. In light of existing British
public policy commitments, Caring for our collections must
include caring for the status of the collections and ensuring
that no looted or stolen works of art are exhibited or harboured
within them, either now or in the future.
Restitution
18. With regard to the disposal of objects
in public collections, Britain is one of the few countries which
does not permit restitution of Nazi looted works of art despite
its repeated endorsement of the principle of restitution over
a period of 60 years and successive commitments by Ministers in
the last six years, including those made to the Culture, Media
and Sport Select Committee in 2000 and 2003.
Failure to legislate to permit restitution
19. Britain's failure to legislate represents
a repudiation of the principles and statements to which it has
subscribed at and since the 1998 Washington Conference as well
as of the terms of reference provided for the Spoliation Advisory
Panel set up by the Government to advise on claims for works of
art in British collections.
20. In 2003 the Secretary of State told
the Select Committee that the DCMS would push for legislative
change if the Spoliation Advisory Panel advised it to do so. In
March 2005 the Spoliation Advisory Panel so advised, but the DCMS
has said that it is unlikely to be able to find legislative time
and that the matter has no urgency or priority, despite the passage
of almost 70 years since the spoliation occurred.
The need for legislation
21. In two cases in 2005 the Spoliation
Panel recommended restitution. The Government accepted the recommendation
in the case of a missal at the British Library but almost two
years later the missal remains there. The continuing absence of
legislation undermines the Panel's credibility and authority and
dismays claimants who wish for restitution.
22. In another restitution claim agreed
by the British Museum in 2002, and where the Trustees of the Museum
passed a resolution expressing their wish to return the looted
works of art, the Museum had no alternative but to seek the agreement
of the High Court to try and achieve restitution. The Museum was
unsuccessful and the claimant eventually accepted compensation
in 2005. The Vice Chancellor ruled that legislation was the only
way to achieve restitution.
23. Priority should be given to legislation
to permit restitution and a firm date and timetable obtained for
such legislation.
B. THE COMMISSION
FOR LOOTED
ART IN
EUROPE
The Commission for Looted Art in Europe (CLAE)
is an independent, non profit-making, expert body dealing with
all matters relating to Nazi looted art and other cultural property.
It negotiates policies and procedures, and assists families, communities,
museums, governments and institutions worldwide with the research,
identification and recovery of looted cultural property. The Commission
represents the European Council of Jewish Communities and the
Conference of European Rabbis.
Co-chairs of the Commission for Looted Art in
Europe are Anne Webber and David Lewis. Honorary President is
Ambassador Stuart Eizenstat, Deputy Secretary of the Treasury
in the Clinton administration, and convenor/host of the 1998 Washington
Conference on Holocaust Era Assets.
C. SUBMISSION
Provenance as national and international policy
1. Two previous Select Committee reports, Cultural
Property: Return and Illicit Trade 2000 and Cultural Objects:
Developments since 2000 2003 looked at the overall issue of
the ownership of and trade in cultural objects in the UK.
2. Both reports emphasise the United Kingdom's
national interest, expressed as a "responsibility to seek
to make a full contribution to the international effort to combat
the illicit trade in cultural property" and the "standard-setting
role" of museums in not exhibiting a work of art that has
been "acquired in, or exported from its country of origin
(or any intermediate country in which it may have been legally
owned) in violation of that country's laws".
3. The importance of provenance is emphasised:
"Such history matters today: it affects the current trade
in cultural property, both licit and illicit, the protection and
understanding of the world's cultural heritage and how that heritage
is presented to the public in the United Kingdom and across the
world."
4. The reports stress that recording the
ownership history of a cultural object is "linked directly
to the capacity to conduct a legitimate transaction" and
making that ownership history publicly available an essential
part of preventing the acquisition or exhibition of illicit property.
"In principle, we consider that information on collections
should be accessible and should not be unreasonably withheld from
those with a legitimate interest, including claimants or potential
claimants."
5. Throughout the 1990s the unresolved issues
arising from the widespread looting of works of art by the Nazis
between 1933-45 became widely known internationally. Hundreds
of thousands of works of art had been plundered across Europe
in actions which were to be prosecuted at Nuremberg as a war crime.
A large number of these works of art had been collected up by
the Allied forces at the end of the war and returned to the countries
where they had been looted for the purpose of restitution to their
rightful owners. The principle of restitution was accepted then,
as now, as the appropriate remedy for spoliation.
6. However, many spoliated works of art
were already on the international art market, others in homes
and collections, public and private and their rightful owners
were unable to locate them. As the years passed, the looted works
continued to be traded freely. Their owners continued to seek
them. The collapse of communism and the opening up of previously
inaccessible archive materials combined to put the issue on the
international agenda.
7. In 1997 it was agreed that the London
Conference on Nazi Gold would be followed in 1998 by a Washington
Conference on Holocaust Era Assets to be organised by the US State
Department.
The commitment of public institutions
8. In June 1998 the National Museum Directors'
Conference (NMDC) agreed to produce a Statement of Principles
and Proposed Actions in relation to the spoliation of works of
art during the Holocaust and World War 11 Period. This was presented
at the Washington Conference in December 1998.[6]
The (then) Museums and Galleries Commission (MGC) followed suit
and published a Statement of Principles for the non national museums
and galleries in April 1999.[7]
Both organisations committed to carrying out and publishing provenance
research on all acquisitions and loans from 1933 until the present
with particular focus on investigating and clarifying provenance
in the period 1933-45.
9. The National Gallery was the first institution
to publish its research in 1999 and other museums followed in
February 2000 and thereafter. The work is not yet completed.
10. The purpose of the research in the UK
and elsewhere was to identify looted works of art in public collections
which had not been returned to their rightful owners.
11. Museums and libraries throughout the
world had previously paid little attention to the status of the
works of art they had acquired or borrowed and skilled research
was therefore required to investigate provenance particularly
when there was frequently little supporting documentation or records
of origin in the institutional archives. Sir Nicholas Serota remarked
in 1999 that museums had been "less fastidious" about
their acquisitions until that time.
12. The NMDC and MGC Statements of Principles
set out due diligence guidelines on surveying collections and
dealing with new acquisitions and loans. They endorse the principle
outlined by the Museums Association in 1994 that a museum's "Collections
Management Policy should ensure, through the appropriate documentation,
that [a] museum does not acquire or exhibit any stolen or illegally
exported works and that it acquires legal title to items accessioned
to its collections".
13. The Statements affirmed that "Museum[s]
will not acquire, whether by purchase, gift, bequest, or exchange,
any object or specimen unless the governing body or responsible
officer is satisfied that the museum can acquire a valid title
to the item in question, and that in particular it has not been
acquired in, or exported from, its country of origin (or any intermediate
country in which it may have been legally owned) in violation
of that country's laws".
14. The MGC Statement required applicants
for Government Indemnity to take steps to confirm to the best
of their knowledge that the owners of items offered on loan have
legal title to them, and that such items have not been stolen
or illegally exported.
15. As regards procedures for acquisitions
and incoming loans, both Statements affirmed that "In accordance
with standard good practice, institutions acquiring or borrowing
any new object should:
— exercise due diligence in satisfying
themselves that the vendor/donor/executors/lender have good title
to the object;
— in accordance with the MA guidance
and MGC Registration requirements (both referred to above) take
reasonable steps to satisfy themselves that the object has not
been wrongfully taken without restitution having taken place subsequently;
— seek from the vendor, donor
or executors the fullest possible information with regard to provenance
including for the years 1933-45.
In accordance with standard practice, all information
with regard to provenance collected during the acquisition process
must be recorded on the main acquisition file."
16. The Statements further refer to the
creation of "Guidance for staff" which "should
include information to seek from vendor or lender" and underlines
the importance of that process.
The compliance of public institutions
17. In the eight years since the Statements
have been in effect several thousand works of art with gaps in
their provenance or whose provenance is known to be tainted have
been published on the NMDC website, www.nationalmuseums.org.uk/spoliation.html.
Britain has led the way internationally in this and demonstrated
that this work can be done with some speed.
18. However, in the same period no information
has been made publicly available on the extent of the observance
of the due diligence requirements set out in the Statements of
Principles as regards acquisitions and loans, existing and new.
19. It might be assumed that the museums
do all they can not to acquire or borrow looted, stolen or illicitly
traded works of art, given the Statements of Principles and that
they rely on public funds and represent public policy. However,
informally obtained information from museum professionals suggests
that a number of museums are not fully observing the due diligence
guidelines as regards acquisitions or loans
20. Informal research into the Government
Indemnity scheme similarly shows no information about provenance
being sought from lenders either at all or as a matter of course.
Accountability and transparency
21. The information under points 17 and
18 above is informally obtained as there is no requirement to
produce any information on the observance of the Principles. Nor
is there any requirement for the due diligence to be carried out
in a publicly accountable and transparent manner.
22. The same is true of the recent due diligence
guidelines to prevent the acquisition or loan of looted antiquities
published by the DCMS as Combating Illicit Trade in October
2005.[8]
These due diligence guidelines apply to all museums, libraries
and archives "to help museums to ensure that they reject
illicit material". With regard to loans, the Combating
Illicit Trade guidelines state explicitly that "at the
outset of negotiations it is important to inform the lender that
museums are unable to …borrow items unless due diligence
has been satisfactorily undertaken."
23. The context and importance of the Combating
Illicit Trade guidelines has become more and more prominent
in the last year with museums across the USA being obliged to
return illicitly traded antiquities to both Greece and Italy.
There has however been no information publicly disclosed by museums
here as to the results of due diligence carried out under this
rubric, reflecting what may be a culture of non-disclosure in
this area of museum activity when disclosure should be an integral
part of the practice of due diligence.
24. In both cases, spoliation and illicit
trade, the due diligence guidelines are recommendations as to
best practice and are not binding obligations.
25. There is no obligation to disclose the
extent to which the due diligence guidelines are carried out nor
who is notified if a museum decides, on the basis of due diligence
enquiries, not to borrow or acquire. There is no requirement to
disclose the identity or location of any looted or illicitly traded
work of art identified during the process or to report such information
to any regulatory body which would enable its recovery. Only one
circumstance for reporting is set out in Combating Illicit
Trade which states that "If a museum believes that a
criminal offence has taken place they should report it to the
police."
26. At present, and after eight years of
the spoliation guidelines, it has not been made known how many
works of art subject to due diligence have been turned down for
loan or acquisition, or what is done when they have been.
27. The question of loans is of particular
importance. While the completed spoliation provenance research
into collections has been published, as noted earlier, there appears
to be no information published about loans—both long and
short term. It is not known how many of the loans already in our
public collections have been examined, what the results of those
inquiries are and what actions have been taken as a result. In
light of the museums' earlier relaxed attitudes to provenance
and hence the risk of problematic works of art having been deposited
on loan, this research needs to be undertaken and the results
published.
28. In light of these factors, it is essential
to establish to what extent the guidelines, both for spoliation
and antiquities, are being observed; to know what records are
being kept; who is notified of any problematic acquisitions or
loans; what action is taken if there is a problem due to the work
of art in question being looted or illicitly traded;. As regards
the extent of the provenance research yet carried out, it is equally
important to know how much remains to be done and when it is expected
to complete it.
29. As regards disclosure of information
on cases that arise, both the spoliation and the illicit trade
guidelines reflect a combination of apprehension and caution in
this regard. The NMDC Statement of Principles advocates "a
practical approach to reviewing and making accessible information
taking into account the nature and size of the collections concerned
and the resources available". Combating Illicit Trade
states "If, after all necessary checks have been made, it
is felt to be inappropriate to pursue the acquisition further,
then the process should be closed formally, with all relevant
documentation put on file. Note that under freedom of information
requirements, the file may be open to future examination."
30. In practice the production of information
is not always satisfactory. Sometimes an inward looking culture
combines with a natural protectiveness towards the collections
and the result may not always be in the interest of public policy
or a rightful owner.
31. There seems to be a conflict between
the public policy aims of due diligence and its practice, which
needs to be remedied. For proper effectiveness, due diligence
should be required and be carried out to recognised national standards,
full documentation recorded on file and the information arising
both published and made publicly available, subject to any legal
restrictions.
32. The thrust of all the due diligence
guidelines is that "Caring for our collections" does
not necessarily mean the retention at all costs of all works of
art in them. In light of British public policy commitments "Caring
for our collections" must include caring for the status of
the collections and ensuring that no looted or stolen works of
art are harboured within them, either now or in the future.
33. The Victoria & Albert Museum's (V&A)
response to enquiries over a long term loan provides a case study
of the kind of problems that may currently arise and which need
to be prevented in the future by a clearer framework of accountability.
34. In 2005 the Commission was asked to
seek information under the Spoliation Principles from the V&A
regarding a Limoges enamel reliquary which was believed to have
been on loan to the Museum from a (named) private lender since
1981. The Commission had documentation proving that the reliquary
had been looted in Poland in 1941 and never returned to its rightful
owners, the princely Czartoryski family.
35. The 1998 NMDC Statement says that "Museums
will seek from a lender the fullest possible information with
regard to provenance for the years 1933-45 . . In response to
an enquiry, a museum will provide all provenance information held
by the institution, details of relevant sources of information,
copies of relevant documents, information or publications held
by the Museum, information from the lender, etc . . .…Prompt
and serious consideration will be given to enquiries, and implicitly,
there will be cooperation.". The NMDC note on "Making
further enquiries"[9]
states unambiguously that "all such enquiries will be treated
as confidential, except as otherwise agreed with the enquirer".
36. The response by the V&A to requests
for records of the loan, details of provenance, curatorial records
and for literature and publications of this precious and valued
object was, by its own later and limited admission, obfuscatory,
inaccurate and incomplete, as it remains.
(a) There were/are claims from curators that
no curatorial or other records exist and that they were not aware
for several weeks of the existence of files which the Commission
was informed had been called up and received within two days of
the first enquiry from the Commission.
(b) Despite one of the Museum correspondents
having published the casket, and another having assisted in an
external publication, the Museum claimed to know of no published
literature on the casket.
(c) The lender was immediately notified of
the inquiry by the Museum without the Commission's agreement.
(d) Several written requests for an explanation
of the Museum's position and its adherence to the Statement of
Principles went unanswered and were eventually met with the response
that the Museum was "not in a position to provide a detailed
reply"—and none was provided.
(e) Confidential documents submitted to the
Spoliation Panel by the Commission and provided to the Museum
without the Commission's knowledge were passed by the Museum to
the lender without either the Panel's or the Commission's agreement
or knowledge. These were subsequently leaked to the press.
(f) The Spoliation Panel, set up by the Government
to adjudicate on claims for works in public collections, agreed
that it had jurisdiction to deal with the claim, as the reliquary
was in the possession of the Museum, albeit as a loan. At the
same time, the Museum contacted the lender and suggested she remove
the reliquary from the Museum and so remove the claim, and the
Museum, from the jurisdiction of the Panel.
37. The response of the V&A throughout
a period of some four months in no way measured up to the NMDC
Principles and amounted to a derogation from Government policy.
The Czartoryski family was unable to obtain response or remedy
from the Museum.
Responsibility to claimants
38. Government policy and a claimant's position
were undermined and compromised by the V&A's response to the
enquiries which prioritised its own perceived interests and those
of the lender of a looted object over those of a bona fide
claimant. Clearly this is not what was intended by the Statement
of Principles (or by the 2003 Select Committee report which states
priority must be given to the interests and wishes of a rightful
owner). It is essential for any future enquirers to this or any
other UK museum that this experience is not replicated. There
should be objective and independent means of monitoring the operation
of these Principles. In addition it should always be possible
for a claimant to secure an independent investigation of a museum's
conduct.
Conflict of interest
39. A further complicating factor is the
position of the DCMS. The Head of the Cultural Property Unit advises
both museums and ministers on how to deal with such issues. The
Head of the Unit is simultaneously secretary to the Spoliation
Panel. It is inevitable that conflicts of interest will arise
between these three sometimes inevitably opposing roles, and be
virtually impossible to avoid. The interests of museums, ministers
and the Panel will generally not be identical. It is not always
clear in what capacity any guidance is being provided or communication
taking place, especially when circumstances arise where the Cultural
Property Unit must advise ministers, the Panel and the Museum
at the same time. In this case, the Museum, the Panel and ministers
had conflicting interests, as is born out by the Museum's advice
to the lender to withdraw the loan.
40. We recommend the creation of an independent
secretariat for the Spoliation Panel as the most appropriate solution.
It will remove the possibility of conflict of interest or confusion
of role, and restore confidence to claimants in their equality
of access to the Panel.
Proposed anti-seizure legislation
41. The proposed anti-seizure legislation
(a consultation document for which was published in March 2006
and which the Government has stated its intention to fast-track)
may affect the future operation of due diligence guidelines, not
least because the concept of immunity from seizure appears to
run counter to the purpose of due diligence.
42. Both the Commission for Looted Art and
the Spoliation Advisory Committee (set up in 1999 under the chairmanship
of Lord Justice Neuberger to advise museums on the actions necessary
to fulfil the Statement of Principles) in their separate responses
to the consultation document have stressed that the NMDC Statement
of Principles should be "firmly upheld by any legislation
and not violated or weakened by it".[10]
43. Both bodies stress that any anti-seizure
legislation should not be seen as vitiating the need for due diligence.
Nothing should be borrowed which has been wrongfully taken and
not restituted.
44. The Spoliation Advisory Committee urges
that "Care should be taken to ensure that the proposed legislation
cannot be used (wittingly or unwittingly) to evade the principles
accepted by the Government in relation to spoliated art. Thus
gifts, bequests or long-term loans should be clearly excluded
from the ambit of the proposed legislation."
45. The Spoliation Advisory Committee notes
that "the Statement[s] of Principles . . . and the 1998 Washington
Principles endorsed by the Government provide for museums to publicise
any art that is discovered to be spoliated or of questionable
provenance in the course of the due diligence process so that
potential claimants are able to pursue their claims. The proposed
legislation should not prejudice the rights of potential claimants
in this regard or, indeed, in any other way. In addition, a museum
to which an item has been loaned should, subject to the requirements
of other legislation (eg on Data protection) be required to provide
a potential claimant with information as to the identity of the
lender."
46. The issues raised by the proposed anti-seizure
legislation underline the importance of creating transparency
and accountability in the operation of due diligence guidelines.
47. In both previous Select Committee reports,
Cultural Property: Return and Illicit Trade and Cultural
Objects: Developments since 2000 the framework in which all
matters referred to above should be understood and examined is
explicit and unambiguous. Ensuring our national interest is given
priority and that museums take a publicly accountable standard-setting
role are more important goals than ever.
Restitution
48. Of the eleven 1998 Washington Conference
principles (all of which were endorsed by Britain) three were
devoted to facilitating the restitution of claims. In the eight
years since, many countries throughout the world have permitted
the return of Nazi confiscated works of art, often on moral grounds
where legal barriers would prevent restitution.[11]
49. Britain is one of the few countries
which has not permitted restitution and where legal barriers,
such as the British Museum Act of 1963, remain in force, with
little prospect of their removal.
50. As matters currently stand, return of
their looted property, which is sought by a number of claimants,
will not be available in Britain for the foreseeable future.
51. Almost 70 years after the seizure of
these works of art, and after many commitments made by the British
government from 1943 onwards, as well as recent claims, it is
perplexing that the Government asserts that the case for legislation
to permit restitution is still unclear. The return of looted works
of art to claimants is often not an impersonal matter but represents
the return of objects that may carry a great sentimental and personal
value. Governments and public collections throughout the world
have recognised this and acted accordingly. For Britain to prolong
the losses incurred is unnecessary. Other countries as well as
bodies in this including the NMDC and the British Museum, recognise
the unique circumstances, and that legislation can be designed
for these circumstances.
Failure to legislate to permit restitution
52. In 2000 the House of Commons Culture,
Media and Sport Committee's report on Cultural Property: Return
and Illicit Trade stated it was essential that legislative
barriers to restitution of Nazi spoliated works of art be removed.
It welcomed the lead taken by the British Museum in making clear
and unequivocal statements that it would wish to return objects
looted during the period 1933 to 1945 and not subsequently returned.
Graham Greene CBE, then Chairman of the Trustees of the British
Museum, had told the Select Committee, "There is no doubt
that we would wish to return anything we found in those circumstances".
53. The Select Committee urged that cross-party
consultations begin as "a matter of the utmost urgency with
a view to securing agreement for early and expedited legislation
to permit the trustees or boards of national museums and galleries
to dispose of objects which, in the view of the Spoliation Advisory
Panel, were wrongfully taken during the period 1933 to 1945."
54. The Government agreed to cross-party
talks and told the Select Committee in 2001 that "there has
been general agreement from those consulted that the removal of
legislative barriers should be sought. The Government has begun
cross-party discussions about the possibility of permitting the
Trustees or Boards of National Museums and Galleries to be able,
where appropriate, to return items which were wrongfully taken
during the period 1933 to 1945. It is also exploring the possibility
of achieving this by means of a Regulatory Reform Order under
the Regulatory Reform Bill currently progressing through Parliament".
55. However, nothing ever went forward.
In the Committee's 2003 follow up report, Cultural Objects:
Developments since 2000 the Government was chided for its
continuing failure to act and the Secretary of State was criticised
for not having told the Committee that the Government's view on
legislation had changed and that it "now considers the need
for legislative change . . . to have evaporated".
56. The Secretary of State did however tell
the Committee that the DCMS would push for legislative change
if advised to do so by the Spoliation Advisory Panel. The Committee's
view was that if the Department waited for a demand to arise it
would be too late and a valid claim should not be denied by the
dilatoriness of ministers.
57. The Committee concluded in 2003: "We
regard the Government's position on spoliation as a regrettable
retreat from the consensus achieved amongst the museums and galleries
community following our predecessors' Report. We urge the Department
to reconsider. We note the potential for an alternative route
to be found via the British Museum's consultation of the Attorney-General
over the effect of charity law. However, while we commend this
initiative by the Museum, we regret that the Government has not
had clarification of this point on its own agenda. We recommend
that the DCMS makes efforts to encourage a speedy and positive
outcome to the British Museum's query."
58. As noted above, the British government
was formerly at the forefront of dealing with these issues. The
Inter-Allied Declaration of January 1943 ("The London Declaration")
aimed at defeating art looting and nullifying any resultant transactions.
Churchill set up the Macmillan Committee to prevent the looting
of cultural objects. The British government signed the Bretton
Woods Agreement of July 1944 committing to the return of Nazi
looted works of art to their owners. It sent out officers to work
in Europe to collect together the looted works of art and ensure
their return to their rightful owners. It was party to art looting
being declared a war crime at Nuremberg. Most recently it endorsed
the 1998 Washington Principles on Nazi-Confiscated Art which agreed
just and fair solutions for cases of Nazi spoliation, and the
2000 Vilnius Declaration which called on all governments to undertake
every reasonable effort to achieve the restitution of cultural
assets looted during the Holocaust era to the original owners
or their heirs.[12]
59. The case for legislating to permit restitution/disposal
has been repeatedly made and accepted by successive British governments
and ministers. The special circumstances of the Nazi spoliation
of Europe were stated by the then chairman of the British Museum
in 2000 and enable the ring-fencing of such legislation. The Government's
inaction is disappointing and takes no account of the possible
distress caused to the rightful owners of looted works of art.
The need for legislation
60. Examples of recent cases brought in
the UK underline the necessity of making restitution available.
In 2002 a restitution case brought by the Commission for Looted
Art in Europe on behalf of the heirs of the late Dr Arthur Feldmann
of Czechoslovakia for four Old Master drawings in the British
Museum was agreed speedily by the Trustees, who accepted the drawings
were looted and passed a resolution that they would wish to return
them to the heirs.
61. In the absence of any action by the
Government to enable restitution over the course of the next three
years, the British Museum took its case to the High Court where
it argued that the Attorney General had the power to authorise
the Trustees to transfer the drawings to the claimants on moral
grounds. The Vice-Chancellor turned the case down and said that
new legislation was the only way to enable restitution to occur.
62. Three and a half years after the claim
was agreed, and with no prospect of restitution in view, the Feldmann
heirs agreed to accept compensation.
63. In March and April 2005 the Spoliation
Advisory Panel, set up by the Government to advise on claims for
Nazi confiscated works of art in British public collections, recommended
restitution in a further two cases, one of a missal in the British
Library and the second of a painting in the Burrell Collection
in Glasgow.
64. In the case of the British Library,
the Government accepted the recommendation but almost two years
later, the missal remains in the UK. The Spoliation Panel's terms
of reference provide restitution as one of the remedies available
to claimants, but this has proved illusory.
65. The Panel itself recommended in March
2005 that legislation should be introduced to permit restitution
of Nazi confiscated works of art, and offered to assist the Government
in drawing it up. Despite the Minister telling the Select Committee
in 2003 that the DCMS would push for legislative change if advised
to do so by the Spoliation Advisory Panel, this has proved an
empty promise. The continuing absence of such legislation serves
to undermine the Panel's remit and authority.
66. The consultation document, Restitution
of Objects Spoliated in the Nazi-Era, issued by the Government
in July 2006 does little to restore it. After the resolution of
the High Court case brought by the British Museum, Culture Minister
David Lammy wrote to the The Jewish Chronicle (sic) that
it was his intention to bring in legislation. After many delays,
the consultation document was eventually published in July 2006
but with the proviso that "we are unable to say when it will
be possible to find legislative time to introduce changes in these
areas."
67. Other recent pan-European initiatives
further underline the British government's failure of leadership
in this area.
68. In November 1999 Council of Europe Resolution
1205 called for the removal of legal impediments to restitution
and for a commitment to return looted property to its rightful
owners. The Resolution was passed unanimously.
69. In November 2003 the EU Legal Affairs
Committee reported that a very considerable amount of looted property
had not been recovered by its owners or their successors, and
that claimants continued to be hampered by legal barriers. It
called on member states "to make all necessary efforts to
adopt measures to ensure the creation of mechanisms which favour
the return of the property referred to in this resolution and
to be mindful that the return of art objects looted as part of
crime against humanity to rightful claimants is a matter of general
interest for the purposes of Article 1 of Protocol 1 to the European
Convention of Human Rights".
70. Priority should be given to legislation
to permit restitution. The priority currently being given to legislation
to provide "automatiç immunity from seizure arises
from threats by the Russians inter alia not to lend to
this country unless they have such immunity. It is not clear that
this legislation is necessary and the consequences are potentially
damaging to our museums' reputations as representing the public
interest in its widest sense.
71. Britain remains out of step with the
many countries that restitute and out of line with its own commitments
to provide just and fair solutions under the 1998 Washington Principles.
Its continuing failure to legislate or commit to legislation undermines
the commitments it made to the Culture, Media and Sport Committee
in 2000 and 2003.
72. Priority should be given to legislation
to permit restitution and a timetable obtained for such legislation.
The Committee is urged to seek a firm date for this legislation.
September 2006
6 Appendix 1 (not printed here). Back
7
Appendix 2 (not printed here). Back
8
Appendix 3 (not printed here). Back
9
See Appendix 1 (not printed here). Back
10
Appendices 4 and 5 (not printed here). Back
11
Appendix 6 (not printed here). Back
12
Appendix 7 (not printed here). Back
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