The museums’ dilemma
The principle that museum collections are held for the benefit of the public, both past and present, underpins the governing statutes of national museums such as the British Museum and the Victoria and Albert Museum. National museums are those which are governed by statute and are in receipt of direct government funding. The governing statutes of these institutions only permit the transfer of objects from the collections in the most limited of circumstances which would not include decisions based on purely ethical or moral considerations. Conversely, the governing bodies of non-national museums such as local authority or university museums have no such statutory restrictions. Therefore, they can give effect to perceived moral obligations and accede to claims from Holocaust victims or their heirs and can transfer objects from their collections – provided that no trust or other condition prevents this.
Trustees of national museums have therefore found themselves, on occasions, in the unenviable position of wishing to return objects but prevented from doing so. The prohibitory nature of these statutory provisions even prevents the use of the principle established in Re Snowden  3 All ER 208 (namely that trustees may make ex gratia payments from charitable property where they consider themselves under a moral obligation to do so). In 2005, the decision in Attorney General v Trustees of the British Museum  Ch 397 put an end to academic debate as to whether this would be feasible for national museums. In that case, the trustees of the British Museum had indicated a desire to transfer certain drawings to the heirs of a Dr Feldmann from Brno in the former Czechoslovakia. The drawings had been seized by the Gestapo from Dr Feldmann’s villa during 1939. The Vice-Chancellor in that case made it clear that only Parliamentary intervention in the form of legislation could circumvent the statutory prohibition on disposal set out in s 3(4) of the British Museum Act 1963. Therefore, the Attorney General was unable to approve an ex gratia payment under the principle in Re Snowden, in the form of a transfer of the drawings.
The effect of this decision meant that when the Panel drafted its recommendations relating to the same claim made by Dr Feldmann’s heirs in 2006, it was only able to recommend that the heirs should receive an ex gratia payment from the public purse rather than the return of the drawings by the museum. In contrast, in a second claim brought by the Feldmann heirs the Panel was able to recommend the return of drawings to the heirs (seized on the same occasion by the Gestapo) which eventually resided in the Courtauld Institute in London. That institution was not prohibited from disposing of its collection in the same way as the British Museum. The obvious disparity of outcome resulting from the same immoral act is obvious. It was this type of inconsistency which ultimately led to the enactment of the 2009 Act.
Effect, scope and duration
The 2009 Act permits the governing bodies of certain national museums to transfer cultural objects from their collections despite any provisions to the contrary in their governing statutes. This is provided that the pre-conditions set out in the Act (see p 18) have been met and that no particular condition or trust relating to the particular object would prevent such a transfer.
The 2009 Act is limited in its scope and duration for two reasons. Firstly, it gives the museum governing bodies powers only in relation to claims made for cultural objects which relate to events which occurred during the Nazi era (defined in s 3(3) as 1 January 1933 to 31 December 1945). Therefore it does not apply to other contentious cultural objects held by museums such as the Parthenon friezes in the collection of the British Museum. The term “cultural object” is not defined in the Act and in fact only appears in the title. This was a point raised in the Public Bill Committee in June 2009. The Parliamentary Under-Secretary of State for Culture, Media and Sport pointed out that the word “object” (which is used throughout the Act) suffices since it corresponds to the term used in the governing statutes of the affected museums.
Secondly, it contains a sunset clause in s 4(7) such that the governing bodies can only exercise these extended powers until 12 November 2019. This provision assumes that museums will not, in the future, acquire objects with tainted Nazi era provenance such that the power might need to be exercised in the longer term. It also means that any potential claims by victims of dispossession or, more likely, by their heirs will need to be commenced within plenty of time as the three-stage approval process means that it could well prove to be as lengthy as any litigation.
The pre-conditions for return
Section 2(1) of the Act requires the following two preconditions to be met before the power of a museum governing body to transfer cultural objects arises: (i) a duly appointed panel (“the Advisory Panel”) must recommend the transfer in accordance with its terms of reference; and (ii) the Secretary of State must approve the transfer.
It is envisaged that the Secretary of State will designate the Spoliation Advisory Panel as being the appointed panel for the purposes of s 3. The Panel qualifies since its functions consist of considering claims for cultural objects that relate to events which took place during the Nazi era.
Once the pre-conditions are met, the museum’s governing body will decide formally (for example in a meeting of trustees) whether or not to exercise its power to transfer the object to the claimants. Museums will therefore not be forced to transfer cultural objects against the wishes of their governing bodies.
“An important moral step”
Seldom does a Bill pass through the Houses of Parliament with such cross-party support and enthusiasm. It started its legislative life as a Private Members’ Bill, introduced by Andrew Dismore MP. In a press release (no 149/09) from the Department for Culture, Media and Sport on 13 November 2009, Mr Dismore acknowledged that the legislation would not necessarily be used frequently, but described it as “an important moral step, to ensure that we can close yet a further chapter on the appalling crimes of the Holocaust.”
Charlotte Woodhead is a barrister (non-practising) and lecturer in law, School of Law and Criminology, University of Derby
Art and morality: the background
During the years 1933–1945 many Jewish families across continental Europe lost possession of valuable works of art and other cultural objects as a result of persecution by the Nazis and their collaborators. Unfortunately not all of these objects were returned to the victims or their heirs despite post-war efforts to do so. Instead, some of these objects, ranging from paintings and drawings to ceramics remain today in museums across the world. Since the late 1990s international efforts have been made to encourage the return of cultural objects to their pre-war owners or to their heirs. In the UK the passage of time means that statutes of limitation have extinguished legal title to the objects and so claims for return have to be made on purely non-legal, moral bases.
In July 2000 the UK government established the Spoliation Advisory Panel (“the Panel”) which was tasked with hearing claims from victims or their heirs for the return of cultural objects which were held in UK national collections (or in a UK museum or gallery which had been established for the public benefit). The Panel is able to take account of moral as well as legal considerations and can recommend the return of the object, compensation or the payment of an ex gratia payment from the public purse. In the event that the Panel recommends either compensation or an ex gratia payment, it can also recommend that the museum displays a notice next to the object recounting the object’s history during the years 1933–1945. Similar panels have also been established in other European countries, for example, Le Commission pour l’indemnisation des victims de spoliations in France and the Adviescommissie Restitutieverzoeken Cultuurgoederen en Tweede Wereldoorlog in the Netherlands.