‘The power to make “ex-gratia” payments already exists in section 106 of the Charities Act 2011, but the new legislation would expand this in two important ways. The first is by allowing trustees of institutions otherwise prevented by statute from disposing of property (e.g. national museums) to seek authorisation for such disposals when these are motivated by a moral obligation, with the approval of the Charity Commission, courts or attorney general. This change specifically overrides the 2005 High Court decision in Attorney General v. The Trustees of the British Museum. The second change will allow trustees to make ex-gratia disposals of low value trust property without the requirement for approval, the value of which is to be measured along a sliding scale based on the gross income of the charity. Both of these new powers will enable institutions in England and Wales to act much more confidently in pursuing the restitution of objects in their collections when there is a strong moral case for doing so.’ (‘Museums, Restitution And The New Charities Act by Alexander Herman, Art Antiquity and Law, Vol XXVII, Issue 3, October 2022). However, ‘the Government became concerned that the extension of the power to statutory charities (e.g. the National museums) might result in it being used to affect transfers of property which their governing statutes currently prevent – for example, returning cultural artefacts to their countries of origin on moral grounds. The government has clearly decided this needs further consideration before it is implemented meaning that the provisions are now in a state of limbo, with the implementation plan saying only that they are “under further consideration prior to commencement”.’ (‘The Charities Act 2022: changes in relation to ex-gratia payments out of charity funds’, Farrer & Co, 20.12.2022).

Instead, why not use ‘Med-Expert Adjudication/Arbitration’ to obtain a non-binding recommendation by the Mediator(s)/Arbitrator(s) to the Government for legislation to be proposed to amend the National Museum’s statute, and thereby provide for deaccessioning of the artefact?

If the parties and the Government agreed to participate in such an bespoke and ad-hoc ADR process, then a political decision could be made about return irrespective of the value of the artefact.

This would involve a 2 part process whereby: (i) applicable ethical principles were proposed discussed and agreed during the 1st ‘Mediation stage’; followed (ii) by the application of agreed ‘ethical principles of repatriation’ by an expert panel of jointly-appointed expert adjudicators/arbitrators.

I am not aware of any literature in which such a hybrid ADR process has been discussed as a potential road to repatriation of cultural artefacts, i.e. based upon an ethical case. If you are aware of any precedents in other jurisdictions please let me know.