Charities such as university colleges and museums are increasingly having to consider the process of returning cultural material to its original owners (restitution) or its place of origin (repatriation). The Arts Council worked with the Institute of Art & Law to produce long anticipated Guidance on Restitution and Repatriation in August 2022.
Legal basis of repatriation
It is a general rule that charity trustees must apply the assets of the charity only for the purposes of the charity, in accordance with the charity’s constitution. If a charity trustee spends charity money on something that is not within its objects, that trustee is in breach of trust and is liable to pay the money back. The same would apply to giving back an item from a charity’s collection. However, a case called re Snowden in 1970 and subsequent legislation have laid down rules which allow for exceptions to this general rule.
The process of restitution is governed by the ex-gratia provisions, where:
- the trustees believe (or could be reasonably regarded) that they are under a moral obligation to make the payment; but
- the trustees are not under any legal obligation to make the payment; and
- the trustees cannot justify the payment as being in the interests of the charity.
The Commission will grant permission only where “it can be fairly said that if the charity were an individual it would be morally wrong of him to refuse to make the payment” (Re Snowden 1970). Charity trustees should be able to convince the Commission that to not give back the cultural item would be morally wrong.
The Charities Act 2022 will make changes that could allow charities to return items with a value of up to £10,000 for a small charity, and £20,000 for a large charity without Charity Commission consent. The implementation of these new rules has been delayed as parliament would like to be clear of the impact on cultural repatriation before they are commenced. The new rules will only allow restitution of lower value items, and they certainly wouldn’t permit the return of the Elgin marbles…
The Arts Council Guidance sets out a comprehensive set of legal, ethical and practical steps trustees should follow when considering restitution or repatriation.
Arts Council Guidance on Restitution