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 [‘T’s] would be ill-advised to return a work of art/cultural heritage unless they were able to look to the Attorney-General , the Court, or the Charity Commissioners, for approval. In the context of repatriation, the critical question is whether the T’s have the power, i.e. a lawful right, to make a disposition of trust property. Furthermore, in the exercise of a power conferred on T’s 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 T’s must act honestly and upon a fair consideration of the matter. (See my essay ‘Deaccessioning Art and Cultural Heritage – The Legal and Ethical Framework’ on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk). The Prime Minister of Greece has said his government is exploring a ‘win-win’ solution to the repatriatrion of the EM but has ruled out any deal that would include the word ‘loan’, saying, ‘We will never recognise that these sculptures are … legally owned by the British Museum [‘BM’]. … But again, we have to be constructive and we have to be innovative if a solution is to be found.’ (We want win-win solution on Elgin Marbles, says Greek prime minister | The Independent). The British Museum Act 1963 [‘BMA’], s.3(4) provides,
‘Objects vested in the Trustees as part of the collections of the Museum shall not be disposed of by them otherwise than under section 5 or 9 of this Act [or section 6 of the Museums and Galleries Act 1992].’ These tight statutory restrictions override any common law or charity law exception. While the BM is an exempt charity under the Charities Act 1960, the procedure available under s.27 of the Charities Act 1993 is not available to it. The BMA defines the discretions available to T’s regarding the keeping and disposal of objects under their care. Beyond the limits of the BMA, the BM has said it is only obliged to respond to a claim for return ‘promptly, constructively and sensitively’ in compliance with the limitations of the law, the guidance of the DCMS, the Arts Council, and the National Museum Directors Conference. Becuase of s.5 BMA, the repatriation of any item from the BM for ‘moral reasons’ must be authorized by Parliament through legislation. Therefore, if a creative and lawful solution can be developed, e.g. by transferring the EM to a bespoke sub-trust created by statute for the benefit of: (i) the people of Greece; and (ii) mankind, involving the appointment of both BM and Greek T’s, and the conferring of a power on the T’s to deliver the EM to Greece for permanent display, then first, a political decision must be made above the heads of the BM T’s by Parliament.