National museums to be excluded from law enabling restitution on moral grounds

The UK Government is to exclude national museums and galleries from legislation that would have enabled them to restitute objects on moral grounds.

Under provisions in sections 15 and 16 of the Charities Act 2022, the trustees of national museums and galleries would have been allowed to seek authorisation from the Charity Commission if they felt compelled by moral obligation to make a transfer of charity property – a voluntary gesture of goodwill known as an ex gratia payment.

This would have provided them with a route to restitution, undermining existing statutes that prevent most national museums and galleries in England from deaccessioning items in all but limited circumstances.

The government says the implications of the legislation were not made clear when the bill passed through parliament. The relevant sections of the bill were suspended in 2022 to give the government more time to consider the provisions.

In January this year, the arts and heritage minister, Lord Parkinson of Whitley Bay, wrote to the Charity Commission to set out the government's position on the bill.

The letter said: "The potential consequences of these provisions were not made clear by the Law Commission when the bill was introduced, and were not the subject of parliamentary scrutiny or debate during the passage of the bill."

Lord Parkinson made clear that national museums would be specifically excluded from the provisions.

He said: "The policy of HM Government is that national museums and galleries should continue to be bound by their governing legislation, precluding them from resolving to restitute objects from their collections other than in the limited and specific circumstances expressly provided for in legislation.

"To that end, we will specifically exclude those national museums and galleries from the commencement of sections 15 and 16 of the act."

Beyond national institutions, the Charities Act enables other charities to make smaller ex gratia payments without having to seek permission from the Charity Commission. Lord Parkinson clarified in his letter that all ex gratia payments where the recipient is located outside of the UK will now be excluded from this provision.

He said: "Charity Commission oversight of these cases provides an important assurance that the charity’s trustees have undertaken proper due process in reaching their decision. Removing this oversight would not be appropriate in restitution cases.

"We are therefore looking to exclude from the commencement of sections 15 and 16 any ex gratia payment where the recipient (i.e. the person to whom legal title for the property would be transferred) is located outside the UK."

Lord Parkinson said officials in the Department for Culture, Media and Sport would continue to work closely with the Charity Commission on the commencement of the provisions and on communicating their plan to the sector.

The government is looking to bring sections 15 and 16 of the act into force later this year.

Some sector leaders have made clear that they would like national institutions to be given more leeway to return objects. Tristram Hunt, director of London's Victoria & Albert Museum, recently described legislation preventing nationals from deaccessioning objects as "infantilising" and has called for trustees to be given more autonomy in their decision-making around collections.

The V&A and the British Museum announced a cultural partnership last month that will see items of Asante regalia, which were looted from Ghana by British forces in the 1870s, return to the country on long-term loan.

An analysis of the issues around repatriation and restitution in national museums will be published in the March/April issue of Museums Journal