I have started drafting my essay for the Diploma in Art Law Course at the Institute of Art & Law in London about the duties (including fiduciary duties) and powers of Museum & Gallery Trustees in relation to deaccessioning. The working draft is set out on the ‘Mediation of Art & Cultural heritage Disputes’ page at www.carlislam.co.uk. This is an ongoing work in progress. In the introduction I explain,

‘Deaccessioning of art/cultural heritage occurs when a museum decides to dispose of a work of art/cultural heritage. Whether a non-statutory museum which is a charity has the power to deaccession is governed first by its constitution, which may or may not provide an express power. In the absence of a power, the necessary power may be obtained. However, any such power:
(i) can only be exercised in furtherance of the objects of the charity; and
(ii) in exercising the power, and subject to limited exceptions, the trustees must perform their duties (including fiduciary duties requiring them to obtain the ‘best price’). In this essay I will discuss the legal mechanisms for deaccessioning by a non-statutory museum. …

In England, where a museum is found to have disposed of an object from its collection by sale, exchange, donation or transfer by any means to any person in consequence of financial and economic pressures and inadequate capital and revenue funding, it may be censured by Arts Council England and stripped of its accreditation. That in turn, renders the institution ineligible for various sources of public grant and a low priority for other public schemes. …

A museum or gallery cannot voluntarily dispose of its property, however compelling the moral demand, unless the disposal is lawful. …

As a general rule, trustees would be ill-advised to return a work of art unless they were able to look to the Attorney-General , the Court, or the Charity Commissioners, for approval. Trustees of a Charity must carry out the trust in accordance with the terms of the trust instrument. In the context of repatriation, the critical question is whether the trustees have the power, i.e. a lawful right, to make a disposition of trust property. Furthermore, in the exercise of a power conferred on trustees to enable them to discharge their duties, they must exercise the power for the purpose for which it was given, i.e. to further the purposes of the trust. In the exercise of a discretionary power trustees must act honestly and upon a fair consideration of the matter.’

The essay will also discuss the provisions of the Charities Act 2022,  and whether a National Museum, e.g. the British Museum and Louvre, owe a wider duty under IHL, to strive to be better ‘collaborative custodians’ of world heritage.