Evidence submitted to an inquiry by the House of Commons Culture, Media and Sport Select CommitteeThe Illicit Trade in Cultural Property

1. Background

1.1 The Museums Association is an independent organisation representing museums and galleries and people who work for them. The association has over 4,500 individual members and 600 institutional members. These institutional members encompass around 1500 museums in the UK ranging from the largest national museums to small volunteer-run independent museums. The Museums Association is a democratic organisation; its governing Council is elected by the membership. It was founded in 1889 and is a registered charity. It receives no regular government funding.

1.2 The MA welcomes the opportunity to submit evidence to this inquiry. We are pleased that the committee has agreed to re-examine the issue of illicit trade in cultural property. The government has taken positive steps to combat illicit trade, but much more remains to be done. We think it appropriate that this inquiry should also touch on issues around the return of objects from museum collections to originating communities. Illicit trade and repatriation are two faces of a single problem: illicit trade today continues to rob people from across the world of their cultural heritage; there is an argument that the presence of some objects in UK museums has the same effect. The time is right for a two-pronged approach to the problem of the degradation of the culture of other countries.

1.3 The MA's recommendations are highlighted in bold in this document.

2. The MA's comments on progress on the recommendations of the former Committee and those of the Illicit Trade Advisory Panel with particular regard to: the development of databases on relevant international legislation and unlawfully removed cultural objects

2.1 We welcome the government's recent moves to address the UK's position regarding the illicit trade in cultural material, including accession to the 1970 Unesco Convention and support for the Dealing in Cultural Objects (Offences) Bill.

2.2 However, much remains to be done by the government, including ensuring the provision of databases of objects and of international cultural property legislation and regulations (ITAP recommendations 5 and 6). It is hard to see how the new criminal offence can operate effectively in the absence of such databases.

2.3 The government also needs to do more to deter the illicit looting, sale and export of UK cultural material. In particular the police still need to take crime against cultural property in the UK more seriously (ITAP recommendation 3) and the government needs to do more to make the system for licensing exports of archaeological material excavated in the UK fully comprehensive and to improve compliance. (This is in addition to changes being made to the Export Licensing System to prevent London being used as a staging-post for exports of illicit material from source countries to the USA and other market countries.)

2.4 Perhaps most importantly of all, as noted in ITAP recommendation 9, the government should promote educational work to create a climate in which collecting illicit cultural property is seen as unacceptable. (As, for example is the case with rare birds eggs.) No government - not even in the UK - can police every archaeological site in its jurisdiction, nor can it monitor every border crossing to enforce export controls. The solution ultimately is in the hands of collectors. Collectors should follow the practice of museums and demand evidence of an object's history. If they fail to do so then, at the end of the day they will be the real looters. We believe that one thing inhibiting progress towards the prevention of illicit trade is that outside museums and archaeology there is no real stigma attached to the purchase of cultural material which may have been illicitly traded; the government has lead responsibility for trying to change attitudes.

2.5 Increasingly, and particularly since the Culture, Media and Sport Committee's report of 2000, UK dealers try to be careful about what they trade in and avoid material if they think it may be illicit. However, we believe it is likely that some dealers inevitably make mistakes (or take short cuts) as the information needed to establish an item's status is often unavailable. The central problem involves what are known as 'unprovenanced' objects, without accompanying information about their previous history. Of course, when these objects come to market, someone knows where they originated, but isn't saying. The trade's argument that client confidentiality must be respected means in cases such as these that little can be said publicly about provenance. This is an unsatisfactory state of affairs. It will only prove possible to fully combat the sale of illicit cultural material when the trade is fully transparent and clear chains of ownership are available to potential purchasers: this is the case with cars and with houses. There seems little reason why the art trade should continue to argue that client confidentiality should be allowed to continue to such a degree.

2.6 In general many parts of the trade seems to prefer to assume items are all licit, 'innocent until proven guilty'. It would be safer - and more realistic - to regard certain categories of material as likely to be illicit unless proven otherwise. Objects without a known recent history should not normally be traded or collected.

2.7 This is the practice followed by UK museums and organisations such as the National Art Collections Fund. Under the (voluntary) Registration Scheme for Museums in the UK, administered by Resource museums and galleries are required to 'refrain from acquiring an object if there is reason to suspect that… the object has been acquired in, or exported from, its country of origin (including the UK), or any intermediate country, in violation of that country's laws or any national or international treaties.'

2.8 The Museums Association Code of Ethics (2002) now requires that museums should avoid acquiring any object that has no secure ownership history, unless it was exported from its country of origin before 1970. To ensure it is acceptable, any purchase should be accompanied by full and proper documentation, including, critically, evidence of any relevant export licences from the country of origin. The Code requires that museums:

'5.7 Exercise due diligence when considering an acquisition or inward loan. Verify the ownership of any item being considered for acquisition or inward loan and that the current holder is legitimately able to transfer title or to lend. Apply the same strict criteria to gifts, bequests and loans as to purchases.

5.8 Reject any item if there is any suspicion that it was wrongfully taken during a time of conflict, unless allowed by treaties or other agreements.

5.9 Reject any item if there is any suspicion that it has been stolen unless, in exceptional circumstances, this is to bring it into the public domain, in consultation with the rightful owner.

5.10 Reject items that have been illicitly traded. Note that the UNESCO Convention (on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property) was finalised in 1970. Reject, therefore, any item if there is any suspicion that, since 1970, it may have been stolen, illegally excavated or removed from a monument, site or wreck contrary to local law or otherwise acquired in or exported from its country of origin (including the UK), or any intermediate country, in violation of that country's laws or any national and international treaties, unless the museum is able to obtain permission from authorities with the requisite jurisdiction in the country of origin.

5.11 Reject any item that lacks secure ownership history, unless there is reliable documentation to show that it was exported from its country of origin before 1970, or the museum is acting as an externally approved repository of last resort, or in the best judgement of experts in the field concerned the item is of minor importance and has not been illicitly traded.

5.12 Contact colleagues and appropriate authorities both in the UK and overseas for any information or advice that may be necessary to inform judgement regarding the legitimacy of items considered for acquisition or inward loan.

5.13 Comply not only with treaties which have been ratified by the UK Government, but also uphold the principles of other international treaties intended to curtail the illicit trade, if legally free to do so.

5.14 Report any suspicion of criminal activity to the police. Report any other suspicions of illicit trade to other museums collecting in the same area and to organisations that aim to curtail the illicit trade.

5.15 Avoid appearing to promote or tolerate the sale of any material without adequate ownership history through inappropriate or compromising associations with vendors, dealers or auction houses. Refuse to lend items to any exhibition that is likely to include illicitly traded items.

5.16 Decline to offer expertise on, or otherwise assist the current possessor of any item that may have been illicitly obtained, unless it is to assist law enforcement or to support other organisations in countering illicit activities.'

2.9 Best practice for museums is well established in principle. But museums need support to turn this into practice. The Museums Association and DCMS are working together to encourage museums to work together to draw up detailed guidance on due diligence procedures that should be followed when acquiring material of overseas origin. An initial seminar for directors of UK museums that collect internationally is being held on 19 November 2003. This group will also be invited, possibly on a future occasion, to comment on outline proposals that have been drafted by the Illicit Trade Advisory Panel and the Museums Association about how museums should act as places of temporary safety for overseas cultural property. There is also a need to finalise similar proposals, also drafted by ITAP and the MA, about an approach to museums acting as repositories of last resort for inadequately provenanced but important archaeological material that is likely to have originated in the UK.

2.10 In the longer term we believe museums will benefit from having the support, on acquisition and other cultural-property matters, of a government-supported central advisory point. In its international strategy Resource has undertaken that by March 2006, it will investigate the most effective way to provide cultural property advice to the sector. We are concerned that, on this timetable, we may have to wait as much as five years before the sector has access to this much-needed advice. We believe that DCMS has a role to play in helping Resource to bring this timetable forward to ensure a cultural property advisory service for museums is established speedily.

2.11 One further issue which we believe is relevant here is the government's approach to the protection of underwater heritage. The UK has not acceded to the 2001 UNESCO Convention on the protection of underwater cultural heritage. The previous Minister with responsibility in this area, Baroness Blackstone, explained to us that the UK had not acceded because there was no scope for discretion in application of the convention, and that it was simply unfeasible - as well as undesirable - for the UK to offer protection to all the thousands of wrecks in its waters. The point may be valid but, nevertheless, we believe that this should not be used as an excuse for a failure to protect underwater cultural heritage. All the countries present at the vote on the Convention's adoption, including the UK, committed themselves to apply the rules in the Annex to the Convention. However, by entering into an arrangement with a commercial company to salvage bullion from the wreck of HMS Sussex, the government has broken these rules. It is one thing for the government to argue that it cannot protect all the wrecks in British waters; it is quite another for the government to be a partner in the exploitation of a historically significant wreck in international waters. Other current cases, including the Titanic, serve to highlight the lack of protection applied to cultural heritage when it is under water rather than under ground. Although the current DCMS Review of Heritage Protection nominally includes underwater archaeology, it seems unlikely that this general review will be able to deal with the special issues relating to the submerged material remains of our maritime heritage. The government should work towards a clear policy for the protection of underwater heritage.

3. The MA's comments on progress with tackling the two areas for further work identified by the previous Committee: human remains, and items potentially removed from their lawful owners between 1933 and 1945, within the collections of publicly funded museums and galleries

3.1 The Museums Association Deputy Director is a member of the DCMS Working Group on Human Remains and supports the dispute-resolution proposals for museum collections of human remains set out in the Working Group's forthcoming report. He is also a member of the Working Group on Human Remains established by the Church of England and English Heritage, which is looking at the excavation and retention of human remains of English origin and is expected to report in Spring 2004.

3.2 As neither of these groups has yet reported publicly it is not appropriate to go into detail here about the recommendations, but from the Museums Association's point of view it is important to draw the committee's attention to the fact that it is clear that museums need a more systematised approach to holding human remains and higher standards. To achieve this they will in many cases need increased external support and advice and improved accountability and scrutiny.

3.3 It is true that there has been little visible progress since the previous Committee reported in 2000 in dealing with the problem of items in museum collections, which might have been removed from their owners between 1933 and 1945. There have still only been a handful of claims, including a new claim made against the Samuel Courtauld Trust earlier this month. Only one case, that referred to in the Committee's report of the Jan Griffier painting in the Tate's collection has yet been resolved. In that instance the government agreed to pay compensation to the family of the rightful owners of the painting. The previous Committee had expressed the view that it would be desirable for secondary legislation to be enacted which would allow works of art in similar cases to be returned, if the owners or their rightful heirs preferred. This issue apparently remains problematic for DCMS and some national museums.

4. The MA's comments on the scale and implications of the looting of the Iraq Museum in Baghdad and museums and archaeological sites elsewhere in the country

4.1 New reports continue to emerge concerning the looting and destruction of historic sites across Iraq. It is disgraceful that looting is continuing and that the Coalition Provisional Authority appears largely unable to prevent it. The international community has taken steps, such as the preparation of the 'red list', to prevent material looted from Iraq's museums reaching markets in the west. But the ongoing looting of unexcavated sites has served as a reminder that, in times of conflict, it is highly desirable to prevent looting and destruction of cultural property at source. Preventing illicit trade once objects have been removed from their context is at best shutting the stable door after the horse has bolted.

4.2 We welcome government's announcement that it aims to ratify the 1954 Hague Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict, along with the 1999 Second Protocol. We believe that it should make its commitment explicit by outlining a timetable for ratification.

5. Broader issues relating to the return of objects from museum collections

5.1 We are pleased that the Secretary of State has recognised the importance of return and repatriation and is taking a greater interest in them. We believe that most museums will benefit from a clearer government policy framework and from government support and assistance in addressing the issue. However, we caution against excessive government involvement in individual cases, which we believe should where ever possible be negotiated on a museum-to-museum basis, with appropriate assistance from independent advisory panels. Ultimately decisions about return are for the governing bodies of individual museums, taking into account a wide range of advice and acting in an open and accountable way.

5.2 A small number of additional points about return may be of help. In 1997 research found that 97 per cent of Museums Association individual members thought that items should be repatriated under certain specified circumstances (for example, if the items would be preserved in a museum after repatriation). Almost 50 per cent agreed with the statement 'Circumstances have changed and in many cases there are grounds for repatriation, even if the items may not be preserved in a museum'.

5.3 Demands for repatriation in Australia, Canada and the USA have led to a profound shift in museum philosophies. Museums in these countries now generally have a concept of sharing responsibility for museum collections with communities of origin. This is generally not the case in the UK, where (with some notable exceptions) museums see themselves as having the main responsibility for objects in their care.

5.4 In Australian, Canada, New Zealand and the United States the return of indigenous human remains and sacred material is now the norm. This is not the case in the UK, although there are increasing examples of return from non-national museums in the UK. In 2003 returns have included human remains from the Royal College of Surgeons, Manchester Museum and the Horniman Museum and returns of cultural material by the Marischal Museum at the University of Aberdeen.

5.5 The argument that if one item is returned it is the beginning of a 'slippery slope' that will lead to huge amounts of repatriation is not we believe viable. Evidence from Australia, Canada and the USA suggests that only a small proportion of museum collections are likely to be subject to repatriation requests. In the UK, even since its high-profile return of a Ghost Dance shirt Glasgow Museums has received very few other repatriation claims. In general the volume of requests for the return of items from UK museums is low (although the strength of feeling and significance of those claims is, of course, often high).

5.6 Repatriation negotiations can bring benefits for museums. If handled properly, a repatriation request need not be a negative experience - it can lead to future co-operation and partnership.

5.7 Most museums are too small to have their own procedures for dealing with repatriation requests and so they would benefit from outside support. At one level this is simply advice, such as the cultural property advice point, discussed above. In some cases museums, even large national museums, are finding it helpful to have government-supported advisory mechanisms: Tate and other national museums have made use of the Spoliation Advisory Panel. We believe that analogous advisory panels would be useful for requests for the return of other types of material.

5.8 Museums would also benefit from further guidance on contentious cultural property matters. Authoritative guidance is now available on many aspects of illicitly traded material and on spoliated material. Soon authoritative guidance on human remains is likely to be made available. Sacred material raises specific issues and we believe a further inquiry into the treatment and possible return should be considered by DCMS.