Human remains: DCMS consultation

October 2004

The Museums Association has considered questions about museums and human remains in considerable detail. Over 100 individuals contributed to this response: members of the MA's ethics and public affairs committees and delegates at a one-day seminar. The Museums Association represents the full range of museums in the UK.

Participants in Museums Association discussions about the key issues raised in the DCMS consultation have included people from: national museums, independent (charitable trust) museums, local authority museums, university museums and military museums. They have expertise in a wide range of museum disciplines including: archaeology, ethnography/world cultures, natural science, Egyptology and military history.

Discussions have included members of governing bodies as well as staff. As a result of the breadth of our discussions over the past few months, we are confident that the views expressed here are those of a significant majority of the UK museum sector.

Our discussions have shown that in general UK museums believe that the current approach to decision making about human remains in museums has to change to ensure that views and advice from outside the staff of the museum and its governing body are fully taken into account.

We believe that so long as proper, published decision making processes are followed openly and accountably (with key independent advice and decisions being published as part of this process) then the final decision about individual cases should rest with the individual museum's governing body.

We believe that museums holding human remains should be licensed and that failure to follow proper decision making processes should be grounds for the withdrawal of a licence (thereby requiring the museum to transfer elsewhere the human remains that it holds).

Answers to questions

Q1: The Human Tissue Bill now before Parliament includes a clause
(clause 52) which will give nine specified national museums the power
to transfer human remains from their collections to others. Is this
change sufficient, or should legislative changes to the powers of
museums in your view go further or wider? If so, what further
changes would you suggest? If you are a non-national museum, do
you currently lack the power to transfer human remains from your
collection to others or is that power restricted in any way?


We believe the proposed changes are sufficient. However, we do not have legal expertise in this area and it would be useful if DCMS and the Charity Commission could consider and provide advice about the circumstances in which it is likely to be permissible for a museum to transfer human remains for moral reasons, for example in cases where the human remains may be subject to a special trust as a result of the circumstances of the original acquisition of the human remains by the museum. (This matter is raised in para 278 of the full report, but not resolved.)

We do not know of any cases where non-national museums have been found to lack the power to transfer human remains, but it would be helpful if the government would make an in principle commitment to amend legislation in future, at the request of a museum or advisory body, such as the Human Remains Advisory Panel (HRAP) or the Museums, Libraries and Archives Council (MLA), should such amendment be found to be necessary.
Q2: Do you consider that other legislative changes are needed, for instance with respect to the `no-property´ rule?

Clarification of the extent of the no property rule would be helpful (particularly about the extent of modification necessary to render the human remains property, as it is unclear whether certain types of human remains in museums are the museum's property or not). It would also be useful to have clarification of the basis on which human remains are held by museums. This may require legislation, or may be possible through the issuing of guidance by government on its current understanding of the legal position.

Q3: Do you agree that it would be useful to introduce a code of practice relating to the care and use of human remains by museums which hold them? If you consider such a code to be desirable, who should issue and enforce it? Do you have any comments on what a draft code should provide for?

We believe that there should be a code of practice and that adherence to the code should be a requirement of the licensing system, enforced by the licensing authority. If a suitable licensing system under the Human Tissue Authority (HTA) can not be established for some reason, then the code could perhaps be enforced by the Museums, Libraries and Archives Council, as a compulsory addition to the accreditation (registration) scheme for all museums that hold human remains. (That is, any museum holding human remains would need to adhere to the code of practice if it was to be registered.)

The code of practice should be drafted, for final agreement by the body responsible for enforcing it, by a group that includes a significant representation of museums with appropriate expertise to ensure that it is usable in practice and in particular that small museums that have a good reason to maintain small collections of human remains can meet the requirements of the code. We agree largely with the scope of the code of practice set out in appendix 4 of the consultation document.

Q4: Should museums be under the licensing regime issued by the Human Tissue Authority i.e. should all, some, or none of the activities
undertaken by museums be subject to that regime? How would
regulation and the cost of compliance affect your operations?


Our favoured option is that museums should be under the licensing regime of the Human Tissue Authority and that all activities in respect of human remains (which need to be carefully defined - see additional points at end) should be covered by the licensing regime (including the publication of and adherence to suitable procedures for considering claims for return or other special treatment).

However, we believe that the licensing regime should be relatively light in touch and that annual inspections are unnecessary. After an initial inspection, further inspections need to be infrequent, perhaps every five years, unless a complaint is made about a particular museum. A simple system of annual returns by museums to the licensing authority should be adequate.

If it is not possible for the Human Tissue Authority to operate a 'light touch' licensing system, then consideration should be given to other approaches, such as operating a code of practice as part of the accreditation (registration) scheme, administered by the Museums, Libraries and Archives Council. While such a system would not be legally enforceable, museums would lose their accredited (registered) status if they failed to abide by the code; we believe this would be a sufficient deterrent to museums.

Q5: Do you have any views on when museums should be brought under the remit of the Human Tissue Authority and/or the licensing regime?

Introduction should begin within the next 3 years. However, introduction of the licensing regime should be carefully phased to allow adequate time for a properly planned and managed process of transfer or return of remains from museums that do not wish to become licensed.

The licensing authority will need to work with museum sector bodies (such as the MLA) to ensure that the process of introduction of the licensing scheme is smooth and does not lead to human remains becoming 'orphaned' or disposed of inappropriately by museums that do not wish to become licensed.

The HRAP may also have a role to play in giving advice during the 'transition' phase; if the HRAP has not been established by the time licensing is introduced then DCMS and the licensing authority must ensure proper alternative systems of advice and support for museums are in place. It will be particularly important to ensure that support is in place to make the process run smoothly for smaller museums that wish to retain human remains.

Q6: Do you agree that the retention of human remains, and any research on them, should be subject to the consent of close family or direct genealogical descendants, where they can be identified? What would you consider reasonable steps for museums to take in order to facilitate identification?

Yes. Museums should publish details of all human remains that have been individually identified and are reasonably likely to be claimed and invite close family and descendants to contact the museum if they wish know more. The museum should consider advertising its possession of identified remains generally and in localities where the remains originated.

It will probably be most effective to do this on a co-ordinated basis, as part of the introduction of the licensing regime. Members of the public who have concerns will find it much easier to find information if there is a co-ordinated national approach (for example a single web portal).

The licensing authority, working closely with museums and museum sector organisations, should ensure that this happens. If this is done, we do not believe that consent need be sought each time research is proposed, (unless close family or descendants have previously indicated that they wish this to be the case). There may be cases in which different descendants disagree with each other - or with the known wishes of the deceased - HRAP must be willing to give guidance in such cases.

Q7: Do you agree with the view of the majority of the Working Group that where no family or descendants are identified, there should be a requirement to obtain consent from those who have within the
deceased person's own religion or culture a status or responsibility
comparable to that of close family or direct genealogical
descendants? If not, do you agree with the minority view that in
these cases the issue should be seen as a matter for consultation
rather than a requirement for consent? What factors are decisive or
important in deciding who should have the authority to make claims
for repatriation?


We agree with the 'minority view'. It may not be appropriate (or even possible) to pre-judge the factors that determine who should have the authority to make claims for repatriation. In recent years claims have come from a wide range of sources: from governments and individuals to pressure groups and tribal organisations. The HRAP will have a role in determining the legitimacy of claimants. (Also see Additional Points: legitimate claimants, below.)

Museums should publish information about their holdings of human remains and then engage in consultations if claimants come forward and request it. In addition to attempting to contact genealogical descendants (Q6), they should be proactive in contacting known legitimate claimants who have, for example, made a claim for similar remains held by another museum.

However, we do not believe it is practical for museums to attempt to engage in extensive 'speculative' consultation with a wide range of groups who have not previously made claims elsewhere. (Highly proactive consultation would only be possible if museums have the resources or central support to undertake the consultations effectively.)

Q8: In cases where a requirement for consent is not the over-riding
consideration, what factors are in your view relevant to a decision
whether or not to return human remains? For instance, is the age of
the remains in your view a relevant consideration?


There are a range of factors usually taken into account, such as those in the Museum Ethnographers Group guidelines. Of particular importance is the legitimacy of the claimant. Age is likely to be relevant in many cases as the older the remains, the more distant will be the claimants.

Q9: Do you agree with the view expressed by the Director of the Natural History Museum, that instead of a requirement for consent, the basis of decisions in all cases should be wide consultation, taking into
account as much information as possible about the deceased, the
community of origin and their relationship with the deceased, and the
public benefit likely to be derived from their retention and research?


As noted above, we generally prefer a model based on consultation rather than consent when there are no direct descendants or close family. The consideration of a case could not be undertaken by the museum without taking authoritative independent advice on the particular case, for example by HRAP. There should be a high degree of transparency and openness in the consultation process.

Q10: Do you agree that all museums holding human remains should have published procedures for dealing with claims relating to human
remains? Should those procedures be subject to any approval?
Should these be based on central guidance (e.g., a Code of Practice),
which could be agreed with the museums community, or should
museums rely on their own guidance?


Yes, museums should publish procedures and they should be based on common guidance. Ideally this guidance should be largely common to all museums and be part of the code of practice underpinning the licensing scheme. If not, the obvious body to oversee the guidance would be the Museums, Libraries and Archives Council. The procedure would need to be agreed formally by each museum's governing body and to relate to the museum's acquisition and disposal policy.

Q11: Do you see a role for a national Human Remains Advisory Panel, to provide advice in cases of disagreement between museums and
claimant communities? If so, which of the three views of consent
outlined at paragraphs 9.12-9.15 should the Human Remains Advisory
Panel adopt in its deliberations, and why?


Yes; most museums holding human remains would welcome the establishment of a HRAP. We support 9.14, the 'minority view'. It should be noted that HRAP might also have a role when there is no clear disagreement between the museum and the claimant, for example to validate an agreement that the museum and claimant community are proposing.

Q12: Do you agree that it should be open to museums to establish their own local advisory panels, and to refer issues relating to human
remains to those panels, either before or instead of referring them to a national Human Remains Advisory Panel? Do you consider that the
relationship between local panels and the national Panel, as proposed
in the Working Group's report, would be satisfactory? Do you think
there is a case for requiring all museums holding human remains to
establish local ethical and advisory panels? Are there other options
which ought to be considered?


If a museum wishes to establish its own local panel, then it can of course do so. It may also wish, or be asked, to refer claims to a national panel. The details of this would be a matter for the claims consideration procedures set out in Q10. For it to have any credibility a local panel would need to be independent and to publish its advice to the museum. Most museums will not want to establish their own panels and would use the national panel. We would prefer it if all museums used the national panel.

Q13: If a Human Remains Advisory Panel were established, do you think it would be used, and, if so, to what extent? Would you refer cases to it? What number of requests for return do you think might be
received, either nationwide, or for particular institutions?


It is hard to be certain, but a national panel may be asked to consider a handful of cases each year. It is not clear at this stage whether the museums with the greatest number of outstanding claims would use the panel or not, but smaller museums would certainly use it if they had claims that were not straightforward.

Q14: Do you agree that it would be useful to publish the statement of
principles reproduced in Appendix 5 as guidance to museums and to
the national Human Remains Advisory Panel? Does the draft require
amendment or expansion?


No comment

Q15: Despite the Government's reservations (at paragraph 9.22), should the Minister for the Arts and the Minister for Culture, Welsh Language and Sport in Wales have a role in dispute resolution when other procedures have failed to secure agreement? If so, why?

We think that the minister should not play a role. However, if in the light of experience museums are found not to follow the advice of HRAP this may need to be reviewed, or there may need to be an independent mediation system.

Q16: Do you consider that other measures to resolve disagreements over the treatment or return of human remains should be explored?
Should the DCMS seek to incorporate any of this in legislation?


If HRAP is established and a licensing scheme is established then additional legislation appears unnecessary as long as the licensing authority has the power to remove licences from museums that do not adhere to proper claims consideration procedures.

Q17: Should a survey of `sacred´ objects in UK museums be undertaken? If so, what, in your view, would be an appropriate definition of `sacred objects´? What sort of objects might the term `sacred objects´ encompass? What would be the resource implications of this move?

A survey or central record of all 'contested' cultural property in UK museums and collections is likely to be more realistic and more useful. Maintaining such a record could be undertaken by, or on behalf of, DCMS, perhaps by the Cultural Property Advice Point that has long been under consideration by MLA.

Q18: Do you consider that the information and education programmes
described at 9.25 and 9.26 would be desirable as follow-up to the
report? If so, who should take on this responsibility?


Yes. The responsibility should be taken by DCMS, who may wish to delegate parts of it to MLA (especially if it establishes a Cultural Property Advice Point), to the HRAP or to the HTA.

Q19: Nothwithstanding your answers to the earlier questions, which of the implementation options at paragraph 10.6 represents the most
appropriate and proportionate way forward in terms of potential costs
and likely benefits, and why?


Option 8 with the possibility of a licensing scheme administered by MLA if HTA option is not possible. But we believe it would be far less expensive as (a) the licensing regime could be a 'lighter touch' than suggested here (see Q4) and (b) some museums are likely to transfer human remains as part of the introduction of the licensing system.

Additional Points

Definitions
It will be important to settle on a clear definition of human remains that is shared by all involved in advising on and supervising human remains in museums.

There needs to be further consultation on this, but in general we believe that as far as museum collections are concerned a definition might be used that excludes isolated samples of things such as hair, nails, teeth and excreta, all of which may be part of items in the collections of general museums that should not necessarily be subject to licensing. (For example, human hair on Victorian dolls or in lockets; teeth in general social history museums; excreta in certain art works.)

Legitimate claimants
If, as is suggested here, the 'minority view' of consent is adopted then work needs to be done (by the licensing authority, by the Human Remains Advisory Panel or under the auspices of DCMS) to give guidance on the status of likely claimants other than documented genealogical descendants.

For example, certain North American tribes have under NAGPRA a specific right to certain human remains from US museums. Similar situations apply in other countries. Under the minority position on consent these tribes will not have the same automatic rights as in their countries.

This will, inevitably, lead to frustration and museums in the UK need clear information about the status of different claimant groups so that they can judge their 'proximity' to the remains being claimed and address the claims appropriately.

It will not be possible to devise a single definitive list, and in any case such a list may well change and develop as precedents are set by particular decisions of museums or HRAP, but a central organisation needs to take responsibility for the initial definition of legitimacy.

For further information please contact Maurice Davies (maurice@museumsassociation.org) or Caitlin Griffiths (caitlin@museumsassociation.org), Museums Association, 24 Calvin St, London E1 6NW. 020 7426 6970.