National Heritage Act 1983

Lord Vaizey of Didcot Excerpts

Thursday 13th October 2022 Grand Committee

Asked by

[Lord Vaizey of Didcot]

To ask His Majesty’s Government what plans they have to review the National Heritage Act 1983.

[Lord Vaizey of Didcot (Con)]

My Lords, it is obviously time to get cracking. We have only one hour, but we have a stellar cast of Peers here to debate this important issue, including the first major speech by my noble friend Lord Parkinson since he was so cruelly ejected by this temporary Government.

It is hard to believe that 40 years ago some of our greatest museums were simply adjuncts of government departments—much as I admire government departments. The V&A was actually a section of the Department of Education and Science, as was the Science Museum; the Royal Armouries was part of the Department of the Environment; and Kew Gardens was part of the Ministry of Agriculture, Fisheries and Food. The Heritage Act 1983 did a great thing and set them free, following the model of many other Acts which had put in place the governance of our national museums, including the famous British Museum Act 1963 and many others before. The Heritage Act meant, effectively, that the micromanagement of museums by government departments was to become a thing of the past, and that our museums would become broadly autonomous, steered in all their complexity by engaged directors and trustees—which reminds me that I have to declare my interests. I am a trustee of Tate, and I was appointed today as chairman of the Parthenon Project, for which I am not paid, which is a campaign to return the Parthenon sculptures to the Parthenon. I am sure that I have lots of other interests that encroach, but those are the two that spring to mind immediately.

This approach of making our museums as autonomous as possible has been an unequivocal success. As people know, UK museums are some of the most popular in the world, with 50 million people visiting DCMS-sponsored museums. The British Museum, Tate Modern, the Natural History Museum and the V&A are in the top 10 most popular art museums in the world. We have the best of both worlds: we do not micromanage our institutions, as do the French, and we do not simply leave them to the whims of wealthy benefactors, as to a certain extent our American cousins do.

With the 40th anniversary of the Act falling next year, there is now a chance to reflect on the remaining restrictions that still bind some of our museums. I am talking in particular about the disposal of objects in a museum’s collection. In the 1980s, it was quite right for the Government to impose these kinds of restrictions, just as they were establishing freedom for national museums. That has been very successful. The collections in our museums, which are for research as well as display, are unrivalled by institutions all over the world.

But in the last few years, the debate has moved on to include a sophisticated and important debate about restitution: how cultural objects were acquired and where they might ultimately reside. It has moved on also because, even going back to a time as recent as the 1980s, the ability to travel around the world to look at objects and the ability to study objects through technology have leapt on exponentially.

We need to debate whether the Act still works for what we need today. In 1983, what was not accounted for or considered were restitution requests and the idea that trustees might want, to put it bluntly, to do the right thing and return artefacts to their place of origin.

Things are beginning to move and the museums that do not have restrictions are able to make these decisions. This week alone, the Smithsonian museum decided to return 29 Benin bronzes, taken from Nigeria during the 1897 British raid on Benin City, to the National Commission for Museums and Monuments in Nigeria. Nigeria has also made a restitution agreement with Germany that included the handover of two Benin bronzes. Oxford and Cambridge Universities have agreed to repatriate more than 200 Benin bronze items, and the University of Aberdeen has already returned two bronzes—the first British university to do so. The Horniman Museum has agreed to return 72 objects. Glasgow City Council has returned Benin bronzes and the Royal Albert Memorial Museum in Exeter has returned some sacred regalia to the Siksika Nation in Alberta. Many museums, if they are not restricted in the way our national museums are, are getting ahead of the game and leaning into this issue.

Let me show you an anomaly that exists today. The V&A has the “Head of Eros”. The British military consul in Anatolia, Charles Wilson, took it from a Roman sarcophagus in 1879 and loaned it to the V&A. It was then gifted to the V&A by his daughter, but Wilson himself had expressed the wish that the head be returned to whoever ended up caring for the sarcophagus. As long ago as 1934, the V&A tried to return it to the Istanbul Archaeological Museum. It has taken almost a century to physically return it, but it was returned in 2021—but of course as a loan rather than a transfer of ownership. And of course, the Parthenon sculptures have been endlessly debated for the last 200 years. I am not going to get into that in my opening remarks.

The stalemate of the Parthenon marbles is nevertheless a useful issue to look at. If your view is simply binary, either you own them and keep them or you do not own them. The debate around returning artefacts is complex, but it is hard to argue that the “retain and explain” policy on contested heritage that the previous Government put in place has been a success. That policy involved writing to museums, galleries and arm’s-length bodies, even those outside the 1983 Act, advising them not to remove contested heritage from their collections. This was effectively a backwards step on the independence and scholarship of directors and trustees.

One question that is frequently asked when one discusses this issue is whether one will go from one extreme to another, from not giving back any object back to giving back everything so that museum shelves and display cases are stripped clear. That will not be the case. The V&A, which holds more than 2.7 million items in its collections, has received a total of nine restitution cases since 1999. The Spoliation Advisory Panel, which returns Nazi-looted art and is a good example of where the Government stepped up to do the right thing, has returned only 22 objects. I think the Spoliation panel and the Reviewing Committee on the Export of Works of Art, where we ourselves say an object is part of our cultural identity and should not leave our shores, are very good models for the Government to follow, should they wish to amend these Acts and put in place a new procedure. One is not—without wishing to contradict myself in my own speech—saying that the trustees would simply have carte blanche to return an object. There would be a reviewing mechanism. It could be an independent body, such as the Reviewing Committee for the Export of Works of Art, which would simply give a view on whether this was a wise disposal.

We know there is much talk about a supposed loophole that has appeared in the Charities Act 2022 to allow museums to make a moral disposal but, even under that, it would require an application to the Attorney-General and the agreement of the Charity Commission. The Horniman Museum’s decision to return the Benin bronzes was still subject, in effect, to approval by the Charity Commission; there will, therefore, always be a backstop to allow a director or a board of trustees to think again about a decision.

In these opening remarks, I simply ask the Minister to consider how times have changed. Our world-class national museums are run by world-class directors and curators. The debate on the provenance of objects and their location has become much more sophisticated, technology has changed and travel has changed. We in this House can have a mature debate about that. The Minister has a perfect opportunity, particularly with the debate about the Charities Act loophole and as we celebrate the fifth anniversary of the Mendoza review into national museums’ policy—which certainly needs to be updated and its implementation reviewed—to take a holistic view of our national museums in the 21st century and to put on the table the opportunity to give our museums and their directors and trustees greater freedom to dispose of or to return objects of questionable provenance to their rightful owners or location.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Kamall) (Con)]

My Lords, I begin by thanking the noble Lord, Lord Vaizey, and his ability to generate publicity for this debate. I also pay tribute to my predecessor, the noble Lord, Lord Parkinson. I would not go so far as to say that he is a national treasure but he is treasured by many of us for his knowledge and the way in which he went about his duties.

Before I respond, it might be worth recalling some of the origins of the National Heritage Act 1983. I say this as a new Minister for Heritage; I am sure that the noble Lord, Lord Vaizey, would describe me as the temporary Minister for Heritage. Indeed, in some ways all Ministers are temporary—we are the opposite of puppies. People say that puppies are for life, not for Christmas; we are just for Christmas. We recognise our ephemeral nature. In my new role I am the Minister for Heritage, but my honourable friend Stuart Andrew is the Minister responsible for museums. Of course, there is overlap, and we talk all the time about these issues, but I focus on heritage. I have been reminded by my department to stop getting so excited about heritage railways and canals; there is far more to our heritage, as Historic England reminds me.

It is worth remembering that this Act established the Royal Armouries, the Science Museum, the V&A and the Royal Botanic Gardens in Kew, as many noble Lords have mentioned, as non-departmental public bodies. We have to remember that, under the provisions of the Act, the bodies are governed by the trustees, not the UK Government. Many noble Lords may well question that, but it is a principle that we have to be quite clear about. The Act outlines the responsibilities of trustees of these institutions, which includes caring for objects in their collections and exhibiting them to the public, supporting research but also promoting public enjoyment and understanding of the unique and special subjects covered by their collections, as well of course as, rightly, generating much debate. Noble Lords have spoken about some of that debate today.

The Act also sets out the board’s duties about the acquisition and disposal of objects. It provides that the board of trustees may not dispose of an object in its collection unless they are duplicates,

“unsuitable for retention in their collection and can be disposed of without detriment to the interests of students or other members of the public”

or

“useless for the purposes of their collection by reason of damage”.

The Act exists to protect the objects and artworks in our national museums to ensure that they are preserved for public benefit now and in the future. As my noble friend is aware, this is one of several Acts that govern our national museums.

Clearly, the underlying question of where cultural objects belong is an important and, as my noble friend acknowledges, highly complex issue. Complexity should not be used as an excuse for inaction; it just means that we have to unpack some of that complexity and look at some of the issues. As someone who grew up in an immigrant household and is from a non-white and non-European background, it is very easy for me to see the feeling of superiority of white European culture over the rest of the world—you sometimes saw this in the referendum, for example—and to feel baffled by this question, given the rich histories of many other countries. I remember my parents telling me when I was a child, “We’ll go to the British Museum, but remember there’s nothing British in the British Museum.” I acknowledge that when I actually turned up there, that was not true, but many of the collections came from around the world, and many of those items are subject to much debate and ongoing discussions.

In the UK, of course, given that the trustees operate independently, it is up to the museum’s own trustees to respond to restitution claims. Of course, in our national museums there is also legislation, including the Act that we are discussing today, that prevents them from removing items. But there are two exceptions—my noble friend rightly acknowledged the case of art looted by German national socialists in the 1930s and 1940s. Of course, in 2000 we had the Spoliation Advisory Panel to consider the claims for the return of these objects. So far, it has advised on 20 claims, and 13 cultural objects have been returned to families. Therefore it is of course important that there are exceptions and to recognise that such claims are deserving of special consideration.

Of course, there are also legal measures in place to allow human remains under 1,000 years old to be returned to their descendants around the world. Since the introduction of this measure, there have been a number of successful repatriations of human remains from our national museums. As recently as July 2022, the Natural History Museum transferred the custodianship and care of the ancestral remains of 113 Moriori and Maori individuals to their descendants in New Zealand.

Given all this, I now turn to the questions from my noble friend Lord Parkinson and the noble Earl, Lord Clancarty, about the potential implications of the new measures in the Charities Act. I am aware that it has been reported that the two provisions, Sections 15 and 16 of the Act, have the effect of enabling national museums for the first time to restitute items from their collections, based on moral grounds. However, I am also advised that when your Lordships and the House of Commons debated the Charities Bill, no such intent was considered, nor agreed on. Given this, the Government are deferring the commencement of the sections of the Act, which we initially expected to be part of the first tranche of commencements in the autumn, until we fully understand the implications for national museums and other charities. I hope that noble Lords will respect that decision; we really want to understand the implications. Whatever one thinks of the debate, it is important that we understand the legal implications for that.

We also recognise that restitution cases are complex and that every situation is different. Given that, at the moment the Government are not changing their position. However, as noble Lords have rightly acknowledged, we are seeing museums exploring other circumstances in which they may be able to return objects in their care. This is to be encouraged. Noble Lords have already talked about the return of the Benin bronzes to Nigeria by the Horniman museum in August this year. The complexity of deciding what is Benin, who the rightful owners are and where the bronzes should be returned to has also been shared with noble Lords. There are many issues such as these when people call for restitution. Some claim to speak for others; many people have claims on restitution. That does not mean that we should not try, but it exposes the complications and the complexity of the debate.

Let me be quite clear: I understand the powerful argument that often museums are willing to return objects to countries but are prevented from doing so due to existing law. Many people—indeed many noble Lords—feel that there will sometimes be very good reasons why an object should not be returned, such as concerns over preservation, curation, storage or who to return it to. But they also feel that a law preventing items being returned should not be the only justification about returning those items. I understand that debate and these arguments completely.

[Lord Vaizey of Didcot (Con)]

My Lords—

[Lord Kamall (Con)]

I see that my noble friend Lord Vaizey is getting very excited for his next podcast.

I understand these arguments. However, the Government’s position remains unchanged. The Government will continue to abide by the long-standing principle and legal position supported by successive UK Governments that claims should be considered on a case-by-case basis. I remind your Lordships once again that we believe that it is the trustees, not the Government, who are responsible for these decisions—not as a way out, but to clearly state that factor as a part of these considerations.

We are committed to supporting museums and trustees in delivering their duties in care of their collections. Noble Lords will be aware that our national development agency for museums and cultural property and Arts Council England, which is sponsored by the DCMS, published the museum guidance, under the title, Restitution and Repatriation: A Practical Guide for Museums in England. I am sure it is a bestseller. This guidance offers museums a technical framework to evaluate claims on a case-by-case basis, and it advises on a spectrum of outcomes, including returning, not returning and making long-term loans and partnerships.

We understand that claims often also lead to opportunities for enhancing understanding for all parties involved in the discussions, including improving knowledge, contributing to research, building mutually beneficial international partnerships and relationships with the originating communities, and opening up a dialogue and discussions about cultural heritage. For example, as my noble friend Lord Vaizey said about the return of the marble head of the Greek god Eros to the Istanbul Archaeological Museum, these two institutions have been co-operating since the 1930s—this is nothing new. However, this agreement is part of an ambitious new cultural partnership between the V&A and the Istanbul Archaeological Museum, and the Government support the V&A with its arrangements of renewable cultural partnerships, which are a pragmatic way of—

[Lord Vaizey of Didcot (Con)]

What is the answer?

[Lord Kamall (Con)]

My noble friend was a government Minister; he knows that it takes a bit of time to come to the answer.

I know that noble Lords are proud of our world-class national museums and the fact that we have more than 24 million overseas visits to DCMS-supported museums, accounting for 50% of all visits, despite the closure of museums due to national lockdown measures. The global public also benefit from our collections, because let us remember that between 2019 and 2020 the UK national museums lent more than 71,000 objects to more than 2,000 venues around the world. It is not black and white or inaction compared with action. Some of these things are already going on. These are deep, complex conversations, but they also provide opportunities for cultural partnerships. Noble Lords talked about global Britain. What a great example of soft power it is if we can be seen to be co-operating and tackling those sometimes difficult discussions head-on. Surely it is better that we have some of those conversations.

As the noble Lord, Lord Bassam, said, technology plays a vital role. Much of our national collection is available online. We recognise the importance of that, which is why my department supported the Arts and Humanities Research Council’s successful bid for £90 million to advance the use of digital technology. These initiatives demonstrate that our museums are dedicated to making their collections accessible, so that as many people as possible can experience, engage with and even be touched or inspired by them.

These collections are also the focus of scholarship and research. In fact, the national museums are internationally recognised as leaders in their academic fields—but, once again, they partner with universities, museums and other research organisations around the world. They collaborated with more than 1,000 UK and international academic and research institutions between 2019 and 2020.

Much of the research is focused on the provenance of museum collections. It is amazing; it shows just show complex these issues are that we have almost a whole new academic field looking at the provenance of the collections, the issues and whether whoever gave it in the first place—or claimed to give it—had any legitimacy. There are a number of other complex issues, as many people would acknowledge. Today we are also committed to combating the illicit trade in cultural property, so that we do not make the same mistake.

In answer to the question from the noble Lord, Lord Berkeley, we are aware of the positive discussions between Cambodia and some of the national museums. Once again, we welcome conversations such as these. I pledge to write to noble Lords to answer the questions I was unable to answer due to my verbosity.

Our museums co-operate extensively with partner institutions. They share their knowledge and collections, which has enabled our museums to co-operate internationally, to lead programmes, to collaborate and to consider issues case by case, but also, with our research on provenance, to ask whether we can unpack some of the difficult debates around those issues and to consider future claims. The law exists to protect the objects in our national museums, but we want to share these wonderful objects with the rest of the world, whether in person, digitally or through bilateral conversations.

I am afraid that for these reasons the Government have no current plans to amend this Act. It took me 12 and a half minutes, but we got there. Do not worry; we will have much more time to discuss it on one of my noble friend’s podcasts.