When can charity trustees can make ex-gratia applications of charity property?

In his article, ’Museums Restitution And The New Charities Act’, published in Art Antiquity and Law, Vol. XXVII. Issue 3, October 2022, Alexander Herman, who is the Director of the Institute of Art and Law in London, and also my tutor for the Diploma in Art Law course at IAL’s wrote, ‘The Charities Act 2022 was passed this year. … The entry into force of the legislation [is] not immediate, but instead [will] be staggered over the course of 2022 and 2023 according to its commencement provision. The legislation does not represent a complete overhaul of charity law in the way the Charities Act 2011 repealed and replaced its predecessor, the Charities Act 1993. Instead, the new act will make targeted changes to the Charities Act 2011, which will remain the primary legislation in this area. Some of the new changes include giving charities additional powers and flexibility in amending their governing documents, in deciding how to procure goods and services, and in borrowing from their permanent endowments in specific circumstances. But the most important change in the context of art and antiquities – that is, the change that could have a significant impact for years to come on the museum sector – will be the expanded situations in which charity trustees can make ex-gratia applications of charity property.’

At the IAL’s training forum on 25.02.2023 I asked about section 331A of the Charities Act 2022 – ‘Limited power for charity trustees to make ex-gratia payments’. Subsection (4) states, ‘The power conferred by this section may be restricted or excluded by the trusts of the charity.’ My question was – ‘Can this provision be applied in order to vary the terms of a governing trust deed so as to provide that determination of the existence of a moral duty to take action (see the conditions in subsection (3)), may be determined by an expert panel for the purposes of the trustees obtaining independent legal advice upon which they may rely, either with or without the authorisation/blessing of the Charity Commission/Attorney General/Court, for the purposes of making a decision about repatriation?’ In commenting on my question Alex noted that a model exists as a precedent – the ‘Spoliation Advisory Panel’ (‘SAP’). In his article Alex mentions  that following the decision in Re Snowden and the making of a claim to the SAP, ‘Parliament introduced legislation to override the restrictions imposed on trustees of national institutions insofar as they affected their ability to return art looted in the Nazi era to claimants.’ Therefore, provided such an expert panel were created, it appears that a practical model exists, which has been successful, to make determinations/provide guidance about the ethical question – ‘What is the right thing to do?’, after a repatriation request has been made on moral grounds.