On the Impact of Arts Council England’s New Restitution Guidelines

July 30, 2021

The guidelines will aim to cover both ethical and legal considerations, and include case studies for how museums and galleries might navigate restitution claims and the return of art and artefacts.

By Samantha Ruston.

Thousands of brass and bronze cast plaques, commemorative heads, and other objects created by specialist guilds for the King of Benin (known as the “Benin Bronzes”) once adorned the royal palace of the Kingdom of Benin located in what is now south-eastern Nigeria. Many of these 16th-century pieces were also commissioned for sacred ancestral altars and used in rituals to revere their ancestors.

In 1897, British forces razed Benin City, destroyed its palace, and looted its contents as “spoils of war”. More than one thousand Bronzes are now displayed in 160 museums and private collections across the world, many of which are now beginning to rethink their position on restitution. This spring, Germany announced plans to return all its Benin Bronzes to Nigeria. This decision came a year after France also approved to return its collection of pillaged objects from the same region. The Metropolitan Museum of Art, New York, has also just announced plans to return two of its bronzes, releasing a statement that: “The Met is pleased to have initiated the return of these works and is committed to transparency and the responsible collecting of cultural property”.^[1]

Despite this, there is yet to be a definitive response from the UK, other than the anticipated Arts Council England (“ACE”) guidance – due to be published imminently. It is hoped that this will provide museums and galleries with a practical and comprehensive guide to approaching the complexities of restitution. However, its impact and application is uncertain, particularly because it will not override existing legislation that restricts some of the largest national museums, such as the British Museum, from deaccessioning objects.

The repatriation of art and cultural objects is a debate that continues to stay current in the public eye, notably in the UK, which was one of the most powerful of the former colonising nations. Issues surrounding this debate are at the forefront of decision making by governments, museums, and galleries alike. The topic is contentious and shaped by a plethora of moral, ethical, political, and legal considerations. However, following new initiatives by its neighbouring governments and the impact of anti-racism protests both in the UK and across the world, the return of colonial-era objects such as the Benin Bronzes by British museums has been put into sharp focus.

The various stances in regard to the Benin Bronzes exemplify the different ways in which institutions are responding to calls from Nigeria for their return. Indeed, with the new Edo Museum of West African Art set to open in Benin City in 2025, conventional arguments against restitution in favour of public access, preservation, and scholarship are, in this case, less tenable. Some museums in the UK, despite not being legally compelled to do so, have recognised the moral impetus to return such objects. For example, although both the Horniman Museum, London and the Museum of Archaeology and Anthropology, Cambridge (“MAA”) have yet to receive formal requests for their Benin objects, both museums have set out policies and procedures for the return of such objects. In a similar vein, the Church of England is now discussing the return of two Benin busts that were gifted to the Archbishop of Canterbury in 1982.

This is part of a wider global movement regarding the ‘spoils of colonialism’, an issue even more pressing following anti-racist protests, both in the UK and across the world. Last summer, the Black Lives Matter movement sparked further calls for the “decolonisation” of school curricula with a petition^[2] of over 260,000 signatures reaching Parliament to discuss making the teaching of Britain’s colonial past a compulsory part of the national curriculum.^[3]

The pulling down of statues as an act of protest also became symptomatic of a social outcry over how academic institutions confront Britain’s colonial history. For example, in Oxford, demonstrations focused on the “Rhodes Must Fall” campaign to remove a statue of Cecil Rhodes, who was a British mining magnate and politician in southern Africa during the late-19th century, from Oriel College. Similarly, on 7 June 2020, protesters toppled a statue of Edward Colston, a sea merchant and slave trader from the 17th century, into the Bristol Harbour. In the autumn that followed, buildings named after him, such as Colston Tower and Colston Hall were also renamed Beacon Tower and Briston Beacon respectively.

The response from the British government to these protests was a new “retain and explain” policy, meaning historic statues will only be removed in the most exceptional circumstances.^[4] Additionally, an even more severe measure of 10 years prison time for criminal damage to memorials and statues was introduced in the controversial Police, Crime, Sentencing and Courts Bill.^[5]

The politics of cultural heritage, restitution, and repatriation has also become even more pervasive in the museum sector. In July 2019, Ahdaf Soueif, an Egyptian writer, resigned as a trustee of the British Museum, citing the lack of discussion concerning restitution as a significant reason: “Museums, state officials, journalists and public intellectuals in various countries have stepped up to the discussion. The British Museum, born and bred in empire and colonial practice, is coming under scrutiny. And yet it hardly speaks.”^[6] In May this year, Sir Charles Dunstone, co-founder of mobile phone retailer Carphone Warehouse, resigned as Chair of the Royal Museums Greenwich after ministers blocked the reappointment of Aminul Hoque, a university lecturer whose work promotes decolonialism, as a trustee. When asked if the government is engaged in a “culture war” on issues surrounding colonialism, Hoque responded that people should reach their own conclusions based on the government’s actions. He added: “If we believe in the values of democracy, plurality of opinions, respect, equality, inclusivity and humanity, then the diversity of boards is vital”.^[7]

Given the complications of navigating restitution, where can museums and galleries currently look for guidance, and how might this debate develop in the future?

On 18 July 2000, in their Seventh Report, the Culture, Media and Sport Committee recognised that museums were “increasingly confronting issues relating to claims for objects acquired in the past” – a trend that has only gained momentum in recent years.^[8] In 2000, the Museums and Galleries Commission (“MGC”) published Restitution and Repatriation: Guidelines for good practice.^[9] Although the MGC was wound up in April 2000, with the majority of its functions being passed on to the Museums, Libraries, and Archives Council, the now “out of print and out of date”^[10] recommendations remain the most recent “official” source of advice for museums and galleries in the UK.^[11]

Over twenty years later, the Arts Council England’s (“ACE”) has appointed the Institute of Art and Law (“IAL”), an independent educational organisation, to develop new guidance for UK museums. The guidelines will aim to cover both ethical and legal considerations, and include case studies for how museums and galleries might navigate restitution claims and the return of art and artefacts.^[12] Originally due in Autumn 2020, the publication date was pushed back to Spring 2021 (although is still yet to be published), citing the global coronavirus pandemic for its delay. The original tender, with a contract value of £41,666, outlined the overarching aim of the project:

“Following initial discussions facilitate by ACE with colleagues from across the UK museum sector it was agreed that new practical guidance for museums is an appropriate first step in response, and that ACE as the national development body for museums in England and with its statutory responsibilities for cultural property is best-placed to lead this work.”^[13]

The lack of guidance up until now led a number of UK museums to implement their own policies and procedures when it comes to restitution. For example, in 2019, the MAA developed its own framework for the return of illegitimately acquired artefacts with consideration to appropriation in the aftermath of violence, such as in the context of colonial intrusion or war.^[14]In the UK, the University of Aberdeen, Scotland, has pledged the unconditional return of Head of an Oba, with a statement that “It would not have been right to have retained an item of such great cultural importance that was acquired in such reprehensible circumstances”.^[15]

The British Museum, however, with the largest collection of Benin bronzes in the world, is precluded from repatriating such items under the British Museum Act 1963 (“BMA 1963”), which permits “disposal” only under very specific and limited circumstances.^[16] The British Museum, as well as other national museums, such as the Victoria and Albert Museum are also bound by legislation such as the National Heritage Act 1983.^[17]

Between 1950 and 1972, at least thirty-seven Benin Bronzes were sold, exchanged, or donated. At the time, it was believed that these were “duplicates” of other objects in the collection. However, it was later revealed that the bronzes were not in fact replicas. Although the objects deaccessioned before 1963 pose no legal challenge, the selling and exchanging of these objects in 1972 is more dubious. This is because Section 5(1)(a) BMA 1963 permits the sale, exchange, or giving away of objects if they are “duplicates”, which these plaques, as it turns out, were not.^[18] This deaccession provides a precedent for those that believe the British Museum, and other national collections should return their Bronzes to Nigeria.^[19]

Despite this, the British Museum – dubbed “the Brutish Museum”^[20] by Oxford University professor and Pitt Rivers Museum curator, Dan Hicks – seems to embody the British government’s “retain and explain” approach to cultural heritage. In tandem is its reluctance to amend legislation that restricts the “deaccessioning” of cultural objects from national museums.^[21] For example, the government passed the Holocaust (Return of Cultural Objects) Act 2009 (“H(RCO)A 2009”) to enable the return of Nazi looted artworks instead of amending pre-existing legislation.^[22] The Act confers power on national museums to return certain objects lost during the Nazi era (1933-1945) and which are now in UK collections, giving effect to recommendations made by the Spoliation Advisory Panel. While this law concerns the return of items stolen to private families, rather than countries, it also exemplifies possible avenues for legislative changes concerning museum practices and deaccessioning.

Parliament passed the H(RCO)A 2009 in response to the High Court case of Attorney General v British Museum Trustees [2005] that ruled the BMA 1963 could not be overridden by “moral obligation” in 2005.^[23] However, such an obligation was not to be extended beyond the context of H(RCO)A 2009 and many objects remain outside the scope of repatriation under the BMA 1963. Despite this, Geoffrey Robertson QC argues an interesting possibility. He contends that Section 5(1)(c) BMA 1963 lends itself to a more flexible interpretation that could enable public museum trustees to deaccession objects deemed “unfit” for retention. The legislation prescribes that the object in question must be “unfit to be retained in the collections of the Museum” and “can be disposed of without detriment to the interests of students” – perhaps a high threshold in 1963 but not in the digital era.^[24] If the past year has shown us anything, it is what can be done virtually. However, the word ‘unfit’ is undefined and subjective, and can therefore generate uncertainty for museum trustees.^[25]

It should be noted that the British Museum is, however, a member of the Benin Dialogue Group. The group brings together museum representations from Austria, Germany, the Netherlands, Sweden, and the UK, with representatives from Nigeria, including the Edo State government, the Benin Royal Court and National Commission for Museums and Monuments. Members of the group have agreed to lend objects on a rotating basis and offer advice for their exhibition, but not permanent repatriation.

Despite increased scrutiny, British national institutions will not be permitted to deaccession their collections until there is a change in law. Perhaps recent developments regarding restitution in other European countries such as France, Germany, and the Netherlands will overwhelm continued resistance and put pressure on politicians to look to the future, rather than the past.^[26] Indeed, it will be interesting to see to what extent, if at all, ACE’s new guidelines consider recent European initiatives or the policies of other jurisdictions, such as the strengths and weaknesses of the United States of America’s Native American Graves Protection and Repatriation Act (“NAGPRA 1990”), signed into law in 1990.^[27]

While legislation means that the stance on repatriation remains stringent for national museums, it is not straightforward for other museums and galleries across the UK. It follows that the new ACE guidelines will provide a starting point and some much-needed clarity. Indeed, for those that have not already developed their own, these guidelines might create a more cohesive approach to the issue of repatriation and enable museums to navigate certain legal challenges. Although it does not represent a change to government policy, it will be intriguing to see if it has any impact on national museums, i.e. those institutions that hold some of the largest collections of objects looted by British colonists.

It is hoped that ACE’s guidelines will mark an important milestone for the UK and provide museums with comprehensive counsel on how to deal with the complex issues surrounding restitution, acknowledging that objects of varying status must be dealt with on a case-by-case basis. Whilst ACE’s guidelines represent a step in the right direction, only time will tell if its impact is any more than that.

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^[1] The Metropolitan Museum of Art and the Nigerian National Commission for Museums and Monuments Announce the Return of Three Works of Art to the Nigerian National Collections, The Metropolitan Museum of Art (June. 9, 2021).

^[2] Shingi Mararike and Shanti Das, Black Lives Matter: The World has Changed, but the Problems Remain, The Times (May. 25, 2021).

^[3] https://petition.parliament.uk/petitions/324092.

^[4] Ministry of Housing, Communities and Local Government, New Legal Protection for England’s Heritage, Gov.uk (Jan. 17, 2021).

^[5] Ministry of Justice, Police, Crime, Sentencing and Courts Bills, UK Parliament (May. 24, 2021).

^[6] Ahdaf Soueif, On Resigning from the British Museum’s Board of Trustees, The London Review of Books (Jul. 15, 2019).

^[7] Gareth Harris, UK Culture War: Museum Trustees are Paying the Price for Disagreeing with Government’s Policies, The Art Newspaper (June. 17, 2021).

^[8] House of Commons, Culture, Media and Sport – Seventh Report, UK Parliament (Jul. 18, 2000).

^[9] Museums and Galleries Commission, Restitution and Repatriation: Guidelines for Good Practice, Museums and Galleries Commission (2000).

^[10] Arts Council England, Guidance on Restitution and Repatriation for UK Museums, Gov.uk (Jan. 10, 2020).

^[11] J Legget, Restitution and Repatriation: Guidelines for good practice, Museums & Galleries Commission (Feb. 2020).

^[12] Id.

^[13] Arts Council England, Guidance on Restitution and Repatriation for UK Museums, Gov.uk (Jan. 10, 2020).

^[14] Museum of Archaeology and Anthropology, Our Approach to the Return of Artefacts, University of Cambridge (Nov. 2019).

^[15] The Communications Team Directorate of External Relations, University of Aberdeen, University to Return Benin Bronze, University of Aberdeen (Mar. 25, 2021).

^[16] British Museum Act 1963.

^[17] British Museums Act, s 5(1)(a); National Heritage Act 1983.

^[18] British Museums Act, s 5(1)(a).

^[19] https://www.forbes.com/2002/04/03/0403conn.html?sh=4e6c427041aa

^[20] See Dan Hicks, The Brutish Museums: The Benin Bronzes, Colonial Violence and Cultural Restitution, Pluto Press (2020).

^[21] See Gereth Harris, Keep Problematic Monuments and ‘Explain Them’, UK Government to Tell Cultural Leaders, The Art Newspaper (Feb. 15, 2021).

^[22] Holocaust (Return of Cultural Objects) Act 2009.

^[23] Attorney General v British Museum Trustees [2005] EWHC 1089 (Ch).

^[24] British Museums Act 1963, s 5(1)(c); see Geoffrey Robertson, Who Owns History? Elgin’s Loot and the Case for Returning Plundered Treasure, Biteback Publishing (2019).

^[25] Id.

^[26] See, for example, Catherine Hickley, Forging Ahead with Historic Restitution Plans, Dutch Museums will Launch €4.5m Project to Develop a Practical Guide on Colonial Collections, The Art Newspaper (Mar. 10, 2021.

^[27] See Christopher Zheng, 31 years of NAGPRA: Evaluating the Restitution of Native American Ancestral Remains and Belongings, Center for Art Law (May. 18, 2021).

About the Author:

Samantha Ruston is a law student due to complete her LPC at the University of Law in London next year. She graduated from the University of Cambridge with a BA (Hons) degree in History of Art. You can get in contact with her at samantharuston@outlook.com.