Introduced in September 2022, the Charities Act authorizes charities, encompassing national museums, to divest themselves of artifacts when faced with a compelling ethical mandate. This was a departure from the constraints imposed by the National Heritage Act 1983, which limited the trustees of prominent UK institutions, such as Tate and the Victoria & Albert Museum, from removing items from their collections unless under specific conditions, for example, if an item is a duplicate or irreparably damaged.
The Charities Act's applicability to museums indicated that artifacts of lesser value could be removed from collections without requiring authorization, while the divestment of more valuable items necessitated consent from the Charity Commission, the attorney general, or a court.
Although the bulk of the 2022 Act's provisions have been implemented, the enforcement of laws potentially influencing the transference of legal ownership of an object back to its country of origin had been postponed to facilitate "further consideration."
The government had expressed apprehension that the amendments would eliminate the Charity Commission's regulatory oversight over trustees' decisions to restitute an object via an ex gratia payment. Lord Kamall, the former charities minister, cited the Horniman Museum's restitution of six Benin bronzes to the Nigerian government in November 2022—with the Charities Commission's prior endorsement—as an exemplar of the provision's application.
The government has now affirmed, via the aforementioned letter, its decision to exclude international property transfers from the Charities Act's sections 15 and 16, thereby maintaining the necessity for Charity Commission approval. The letter, penned by Lord Parkinson, the minister of arts and heritage, explicitly states, "The policy of HM Government is that national museums and galleries should continue to adhere to their governing legislation, which restricts them from electing to repatriate objects from their collections except in the narrowly defined and explicit circumstances legislated." Lord Parkinson emphasized the significance of Charity Commission oversight in ensuring that trustees conduct due diligence in their decision-making processes. He argued that the removal of this oversight in restitution scenarios would be inappropriate.
Legal constraints have historically been cited by national institutions as barriers to repatriating collection items. This issue has been notably articulated by the British Museum in relation to Greece's ongoing requests for the return of the Parthenon Marbles.
Recently, the British Museum's interim director, Mark Jones, expressed his support for a loan agreement with Greece regarding the Parthenon Marbles, contingent on his tenure. This statement follows his succession of Hartwig Fischer, who resigned amid revelations of significant thefts from the museum's collection.
The Charities Act of 2022 had initially kindled hopes for reduced bureaucratic intervention enabling museum trustees to repatriate artifacts as necessary. However, art law expert Alexander Herman has pointed out that the Act is unlikely to precipitate widespread restitution of museum artifacts, as the ex gratia power is applicable only in exceptional cases.
The latest amendment to the Act preserves the requirement for museums and galleries to obtain Charity Commission approval for returning collection items overseas, including for minor or low-value artifacts. The Horniman Museum's successful return of the Benin Bronzes suggests a potential willingness on the part of the Charity Commission to review restitution applications favorably, according to Herman.
Maintaining control over all ex gratia payments made outside the UK allows the Commission to allocate its resources more effectively towards handling larger and more complex cases, as Orlando Fraser remarked in response to the ministerial letter. The enforcement of the Charities Act's sections 15 and 16 is scheduled to commence later this year.