Withers Worldwide

In July 2006, the British Culture Minister launched a public consultation on whether statutory restrictions currently preventing national museums from de-accessioning works of art in their collections should be relaxed to allow the restitution of property lost during the Nazi Era.

The proposal is to introduce legislation that will remove statutory barriers and non-statutory restrictions (e.g. the provision in a gift restricting the recipient trustees from disposing of items in the collection) to allow museums to return items lost in the period from 1933 to 1945. 

The proposal was prompted in part by the recommendation of the Spoliation Advisory Panel in its report on the Beneventan Missal, a 12th century manuscript unlawfully removed from a cathedral library in Italy in the early 1940's and subsequently acquired by the British Library.  Withers acted for the claimant in the case.  The Spoliation Advisory Panel recommended that legislation should be introduced to permit the restitution of cultural property lost during the years 1933-1945, where the property was now in the possession of a UK national collection or another UK museum or gallery established for the public benefit.  Since it was set up in 2000, the Panel has considered five claims to property held respectively by the Tate, the British Library, the Burrell Collection in the care of the Glasgow City Council, the Ashmolean Museum and the British Museum.  In four of the five cases, the Panel found that the claim was valid, and in two cases involving respectively a painting formerly attributed to Chardin and the Beneventan Missal, the Panel recommended that the object should be returned to the claimant.  In both cases, there were legal restrictions preventing the Glasgow City Council (in the case of the painting) and the British Library (in the case of the missal) from returning the object.

National museums in the UK are subject to different restrictions on the disposal of property within their collections.  In order to establish the scope of a museum's power of disposal, one must consult the governance arrangements (many of them statutory) specific to the museum.  In most cases, the power of disposal is very limited.  Some local authority museums are also subject to statutory restrictions on the disposal of property in their collection. 

Assuming that statutory power is to be given to national and local authority museums to dispose of items in their collection, the key questions posed by the consultation are:

How far should any power of disposal extend?  The Minister has made it clear in the consultation that there are no proposals to give museums a general power to de-accession.  Any powers of disposal will be limited to property lost during the Nazi era.  The issue is how to define the scope of these powers within that context.  If the scope is too narrow, a museum may be prevented from returning property to a claimant with a strong moral claim.  If the scope is too broad, the door will be opened to restitutions with only the most tenuous connection with the Nazi depradations.  The proposal is to find a form of wording that will cover situations where claimants can demonstrate that their loss was attributable to Nazi aggression, and in the circumstances there is a compelling moral case for restitution.  Three alternative definitions of "loss" are being suggested in the consultation.

Who should take the decision to de-accession objects from the museum's collection?  There are two main options.  One is to give museums discretion to de-accession objects lost as a result of Nazi aggression.  The other is to give the Secretary of State the power to permit, or direct, that an object be released from a museum collection.  The consultation also considers the role of the Spoliation Advisory Panel, and in particular whether any recommendations by the Panel in individual cases should be binding on the museum.

Should the power to de-accession be limited in time?  There are two options.  One is to limit that power to a term of years on the ground that at some point in the future, new claims to looted property during the Nazi period will no longer be likely.  The other is to make it open-ended.

In addition to statutory restrictions, objects in national collections and other museums and galleries may be subject to restrictions imposed by a condition on a gift or bequest made to the museum (as is the case with the Burrell Collection), or where the collection is held on charitable trusts.  Such restrictions may prohibit the disposal of any object in the collection, thereby preventing the return of objects lost during the Nazi period.  The question is whether any new legislation should introduce a power to dispose which overrides any non-statutory restriction, and the extent of that power.  The proposal is to provide for a general provision allowing public and private institutions to disregard any trust or other condition restricting disposal of the property, subject to appropriate safeguards which, in the case of a charity, may include consent from the Charity Commission.

The period of consultation expires on 10 November 2006.