Global Taxes

Restitution in the UK: developments in law and practice

Monday 10 October 2022

Petra Warrington
Charles Russell Speechlys, London
petra.warrington@crsblaw.com

Sara Pridgeon
Charles Russell Speechlys, London
​​​​​​​sara.pridgeon@crsblaw.com

Introduction

The UK’s museums are one of its most celebrated assets, allowing millions of people to come face-to-face with the world’s great historical treasures each year. These treasures are not, of course, all homegrown; nestled alongside Saxon hoards are the riches of far-flung kingdoms, compelling the nation to acknowledge that some collections are held at the expense of others. Engaging with restitution claims forces institutions to navigate the murky waters of international relations and public opinion, of statutes which hinder action and ingrained concepts of national heritage. But the tides may be turning – with new guidance published by Arts Council England this summer and new legislation on the horizon, restitution and repatriation are clearly at the fore. The past year has also seen several successful restitutions which illustrate the complexities and possibilities of returning objects from museum collections.

Gaining speed

Looted from Benin City following the British Army’s punitive expedition in 1897, the Benin Bronzes (the ‘Bronzes’) are scattered across hundreds of museums worldwide. The Bronzes constitute thousands of objects; the British Museum alone has over 900 in its collection, of which approximately 100 are on public display at any one time. Today,125 years later, the Bronzes have become emblematic of restitution and repatriation debates. In July 2022, for example, Germany signed a landmark agreement with Nigeria concerning the transfer of over 1,000 objects, and several English museums are not far behind.

The Horniman Museum & Gardens in London received a claim from Nigeria’s National Commission for Museums and Monuments (NCMM) in January 2022. Following a review of its collection to identify objects within the scope of the request, the Horniman’s board voted to restitute 72 items, a move the Charity Commission authorised in August 2022. A similar restitution is pending at the University of Oxford, where the Pitt Rivers Museum and the Ashmolean Museum have requested authorisation to return 97 objects from their collections after receiving a claim from the NCMM. The Charity Commission’s decision is expected this autumn. At the University of Cambridge, the Charity Commission’s approval is sought for the return of 116 objects in the collection of the Museum of Archaeology and Anthropology (MAA).

Many of the restituted Bronzes will find their way to the Edo Museum of West African Art, which is being specifically developed to house them. Some, however, will remain in place by virtue of long-term loan agreements. These cases involving the Bronzes are lauded as a lesson for restitution sceptics: while objects may be returned, our museums will not be emptied and their narratives may be enriched.

Hands tied by statute

Not all UK museums are legally entitled to take such decisive action. To restitute items from their collections, the Horniman, Oxford museums and MAA only need authorisation from: (i) their respective boards and (ii) the Charity Commission, Attorney General, or the courts, pursuant to section 106, Charities Act 2011 (‘Charities Act’), as restituting objects is seen as an ex gratia payment outside of their strict charitable aims. By contrast, many national institutions are prohibited from such disposals by the British Museum Act 1963 (the ‘1963 Act’) or the National Heritage Act 1983 (the ‘1983 Act’), which restrict how trustees may deal with – or dispose of – objects in their collections. At the Victoria & Albert Museum (V&A), this has required a creative approach to restitution efforts, as seen in June 2022 when the Head of Eros – housed at the V&A since 1883 – was reunited with the Sidamara Sarcophagus at the Istanbul Archaeology Museum. The move came after decades of collaboration and negotiations between the two museums regarding both conservation and the reunification of the head with its body on the sarcophagus. Because of the restrictions in section 6 of the 1983 Act, the V&A is currently unable to transfer ownership and has implemented the restitution by way of a loan. Such loans are nothing new in the restitution space, offering a quick, pragmatic way of returning objects in cases where title cannot be transferred, or claims may be unclear. Notably, the loan agreement is part of a renewable cultural partnership between the V&A and Turkey’s Ministry of Culture and Tourism. Not only does such a move seek to strengthen British and Turkish ties, it also serves to reframe the relationship between claimants and restituting entities as one which affords ongoing opportunities for collaboration and research.

A creative reading of the 1963 Act may offer the British Museum greater freedom to make restitution of objects from its collection. In a legal opinion published last year, Samantha Knights KC (King’s Counsel) suggests that one pathway to restitution may lie in the interpretation of section 5(c) of the 1963 Act. One of the exceptions to the general prohibition at section 3(4), this provision allows trustees to dispose of items in the British Museum’s collection if they deem that the object is ‘unfit to be retained in the collection of the Museum and can be disposed of without detriment to the interests of students’. This legal opinion was provided for the Scheherazade Foundation as part of its efforts to see 11 Ethiopian tabots – tablets sacred to the Ethiopian Orthodox Church that were looted from Maqdala in 1868 and are now held by the British Museum – returned to Ethiopia. The definition of ‘unfit’ is uncertain and potentially subjective, but there is a persuasive argument to treat objects of such obvious sacred significance as the tabots as unfit to form part of a museum collection. The fact that they have remained in storage for the last 150 years, unseen and unstudied, weakens any argument that restitution would be detrimental to the interests of students. While the British Museum has previously suggested that it would consider a loan to the Ethiopian Orthodox Church in Britain as a compromise, this has so far failed to materialise. In the meantime, the museum has faced criticism for what some see as a lack of transparency in its deliberations and pressure is mounting to restore the tabots to Ethiopia.

Legislative answers on the horizon

With today’s emphasis on the definition of ‘unfit’ and the growth of digital collections that mean removing objects is no longer fatal to their research value, section 5(c) of the 1963 Act could offer long-awaited restitution opportunities. However, there is also an alternative to this approach in sight. Expected to come into force before year end, the Charities Act 2022 (the ‘2022 Act’) includes two important changes to museum trustees’ powers to restitute objects. Firstly, the 2022 Act inserts a new section 331A into the Charities Act, which will allow trustees to make ex gratia transfers of objects deemed low value in situations where the trustees can be reasonably seen to have a moral obligation to act. The value threshold is determined by a sliding scale in section 331(6), dependent upon the museum’s income; while some items will exceed the £20,000 cap, many others will not – monetary and emotional value do not always go hand in hand. In an important departure from Attorney General v Trustees of the British Museum [2005] EWHC 1089 (Ch), section 331(5) suggests that this new flexibility applies to charities established or governed by legislation (such as the British Museum), whose ability to restitute objects has thus far been impeded by statute.

Secondly, the 2022 Act inserts new subsections 106(1), (1A), and (1B) into the Charities Act, making it possible for museums to apply to the Charity Commission, Attorney General, or the courts for authorisation to restitute objects which exceed the value threshold of the new section 331A. The legislative amendments make clear that whether by freely restituting items of low value or applying for authorisation, museums now have more freedom to act in cases where there is a moral obligation to do so.

While this may offer a path to resolve difficult restitution debates, it does not place any obligation on museum trustees to act. That said, the 2022 Act may encourage trustees of institutions such as the British Museum to critically engage with the question of restitution: where restitution is seen as a legal impossibility – a hypothetical exercise rather than a reality – there is naturally a different approach to the possibilities, practicalities and significance of objects’ return. Guidance from Arts Council England published earlier this year aims to support institutions as they navigate these issues and will be of particular interest considering the amended section 106 of the Charities Act introduces an objective test of trustees’ moral obligation to act.

Prepared in collaboration with the Institute of Art & Law, Restitution and Repatriation: A Practical Guide for Museums in England outlines the legal framework for UK museums disposing of material in their collections, and the international and national legal instruments pertaining to restitution. It gives an overview of best practice in relation to provenance research and contextualising objects with provenance and collecting histories, provides template policy documents, and offers practical advice for working through a claim. The guidance also highlights the need to digitise collections – both objects and their provenance – where appropriate to broaden accessibility.

Looking forward

Even with the promise of the 2022 Act and shifting attitudes, there is still a way to go in effecting restitutions, especially when the items being considered play a large role in their adopted nation’s sense of identity as well as the source nation’s cultural patrimony. The Parthenon Marbles are a prime example. Despite increasing popular support for their return to Greece, it is uncertain what the British Museum’s trustees will determine (or what an authorising body under section 106 Charities Act as amended would decree) regarding their restitution. Despite the moral dilemma they pose, the marbles are a clear asset to the UK’s public collections. Creativity – and technology – may offer a way forward.

In the galleries alongside the Parthenon Marbles are displayed copies of those which remain in Greece, a neat reunification which allows visitors to view the whole. Many believe further replicas could break decades of deadlock. One such group, the Institute for Digital Archaeology (IAD), made headlines this summer after photographing the Parthenon Marbles  with Lidar cameras and using the resulting digital models to carve copies. Produced via robot, these copies can be quickly made, with the precision of technology and marble from the same quarries as those used for the Acropolis thousands of years ago, it is difficult to imagine a more successful replica. Perhaps unsurprisingly, IAD’s work is not without controversy: the photographs were taken after the British Museum refused IAD’s request to scan the marbles; there are also questions to be asked surrounding the ethics of unilaterally copying works subject to restitution claims. Still, 3D reproduction technology and IAD’s experiment offer exciting possibilities for what is to come. Whether plaster casts of classical sculptures or Roman copies of their Greek counterparts, replicas have been a long-standing component of museum collections. Copies produced in the context of restitution may soon join them.

With the possibilities afforded by the 2022 Act and new interpretations of the 1963 Act, the legal framework for restitution in the UK may be catching up with the growing cultural shift. That said, restitution will remain a laborious, case-specific and careful process requiring creativity around rights and remedies.