DCMS to review exclusion of national museums from new restitution rules

The Department for Culture, Media and Sport (DCMS) has confirmed that it will review the exclusion of national museums from new rules making it easier for charities to return cultural objects on moral grounds.  

The provisions, passed as part of the Charities Act 2022, were put on hold for a number of years over concerns about how they would apply to statutory national institutions. They were finally implemented by the DCMS parliamentary under-secretary Stephanie Peacock last November.  

The new rules give charities more power to make small “ex-gratia” payments – payments driven by moral rather than legal obligation – without the oversight of the Charity Commission or attorney general.  

However, Peacock confirmed that national museums and galleries would be excluded from the exgratia provisions to ensure the new powers do not override existing statutes that prevent those institutions from freely disposing of objects.

The legality of this decision has been questioned by a number of sector bodies and legal experts, who say ministers appear to have circumvented normal parliamentary procedure to amend an Act of Parliament.  

The International Council of Museums UK wrote to Peacock last year to raise its concerns, while the law firm BatesWells described the exclusion as an “unusual use of powers”.  

Those concerns were backed up this month by the Joint Committee on Statutory Instruments, a cross-party committee of MPs and peers that scrutinises secondary legislation.  

In its latest report, the committee wrote that “if the government disagrees with legislation that Parliament has passed, the correct approach is to pass new legislation rather than seeking to undercut it by simply not commencing it”.  

However, the committee stopped short of declaring the decision unlawful, noting that DCMS had confirmed in its response that the exclusion would be temporary rather than permanent.  

DCMS told to the committee that it would review the exclusion within five years of the Charities Act receiving Royal Assent, meaning the review must be carried out by February 2027.  

In a statement, Icom-UK said: “Icom-UK recently wrote to DCMS to seek clarification on behalf of its members in regard to the provisions and exclusions in the UK Charities Act 2022 [...] 

“DCMS has now confirmed that the exclusion decision was only temporary. DCMS will review it as part of the review of the Charities Act 2022, which is due within five years of the act receiving Royal Assent (by February 2027). 

“Icom-UK welcomes this response. By participating in policy-making discussions, and working towards solutions, Icom-UK seeks to inform nuanced conversations, and serve as a trusted advisor to both its members and policy makers, working towards united sector-wide solutions.” 

In a blog on its website this week, BatesWells argued that the government’s position that the exclusion was justified because the full implications of the bill had not been debated in parliament was “incorrect”.  

“The impact on statutory charities was clearly explained in the material before parliament,” said the blog. “It is also constitutionally beside the point; because it is not for government to render a law nugatory because it did not think that parliamentarians focused on the ‘right’ issues.” 

BatesWells said it was not clear what the review would look like, but that “the DCMS memorandum to JCSI notes that they failed to commence the provision because they thought the issue should be subject to parliamentary debate, and consultation with the sector and the public.  

“These are presumably the tools that DCMS will need to engage to properly review the issue before next February. We look forward to seeing DCMS’ next steps as it undertakes its review.”