Returning the past: what charity trustees need to consider before returning an object
Who should decide where an object of profound cultural significance belongs? It is a question increasingly confronting museums and cultural institutions. An object may have been held in a collection for generations, perhaps entirely lawfully, yet have a history and significance which reaches far beyond the institution that now possesses it.
For charity trustees, that can create an exceptionally difficult dilemma. They are responsible for preserving and protecting charitable assets, sometimes for future generations. But what happens when responsible stewardship might also require them to consider whether an object should remain in the collection at all?
Recent reports that the British Museum is to hold discussions concerning sacred Taino sculptures sought by Jamaica have once again brought this dilemma into public view. The debate surrounding the return of cultural objects can quickly become a debate about history, colonialism, morality and national identity. Strong views are inevitable.
But the task of a charity trustee is different and unusual. The question in the boardroom cannot simply be “what do we believe is the right thing to do?” It must also be: “what is the right thing for this charity to do, having regard to its purposes, our duties as trustees and what the law permits?” This distinction matters.
Trustees may personally believe passionately that an object should be returned to its country or community of origin. Others may feel equally as strongly that their responsibility is to preserve the collection entrusted to them. Neither belief, however sincerely held, settles the question. Trustees are not there to impose their personal view of history upon the charity. They are there to exercise independent judgment; to understand the evidence, the charity's purposes, the legal framework and the consequences of the decision they are being asked to make.
And sometimes the most difficult part is recognising that “who owns it?”, “should we return it?” and “can we return it?” are three different questions.
Trustees are stewards, not owners
This fundamental distinction lies at the heart of the issue. A charitable collection is not the personal property of the trustees temporarily occupying the boardroom. They have inherited responsibility for it from those who came before them and may be making decisions whose consequences will long outlast their own terms of office. This is what makes stewardship of cultural heritage unusual. Good intentions matter. But good intentions are not enough.
When a request for return arrives, trustees need to resist both the pressure to reach an immediate moral conclusion and the temptation to dismiss the request simply because an object has been in the collection for many years. Several considerations then come into sharp focus.
What if returning the object is not merely difficult, but unlawful?
A compelling moral argument does not give trustees a legal power they do not possess. In some cases, the problem goes further; legislation may positively restrict or prevent the permanent disposal of an object from a collection.
The law in this area is fragmented. There is no general law of “repatriation” applying uniformly to museums and cultural charities. Different institutions may instead be governed by their own legislation, governing documents, charity law and restrictions attaching to particular objects or collections.
Some national museums, including the British Museum, operate within statutory regimes which tightly constrain disposal from their collections. Other charitable museums and cultural organisations may occupy a very different legal position. There are also specific statutory exceptions in particular circumstances; further illustrating why broad assumptions about a general right or power to “return” cultural property can be misleading.
The legal position also sits within a wider public-policy context. Parliament and successive governments have made choices about the protection and disposal of national collections, while policy and legislation in this field continue to attract debate. For trustees, however, the immediate question is not whether they agree with that policy. It is what the law presently permits their charity to do.
One museum's answer is not necessarily another's
High-profile decisions can easily create the impression that a precedent has been established. If one museum can return an object, why can't another, right? Steady! The current fragmented legal framework means that such a comparison can be dangerous. Powers and restrictions applying to one institution may be materially different from those applying to another. Even within a single collection, particular objects may raise different questions.
Nor does a high-profile return necessarily tell trustees what legal mechanism made it possible. A permanent transfer of ownership, a loan or another form of cultural partnership may produce superficially similar headlines while being legally very different arrangements. Trustees should therefore be cautious about treating another institution's decision; whether to return, retain or lend an object; as an answer to their own situation.
Is “repatriation” even possible and, if so, is it really the answer?
“Repatriation” has become a familiar term in public discussion. But it describes an outcome rather more readily than it explains the legal route by which that outcome might be achieved.
The circumstances can differ enormously. An individual private collector may be free to give an object away. A charitable institution may hold objects in furtherance of particular cultural or educational purposes. Another museum may be subject to legislation which restricts its ability permanently to dispose of objects from its collection. All might feature in public discussion about “repatriation". Legally and from a governance perspective, however, they may present very different questions.
The same is true of the objects themselves. An object acquired during a period of colonial rule may have a deeply contested history and profound cultural or religious significance to a country or community of origin. Those circumstances may be highly relevant, but they do not necessarily inform the trustees who own the object today, as to what powers they may or may not have to deal with it or whether permanent transfer is legally available. Provenance, legal ownership, charitable purpose and the case for return are therefore related, but distinct.
And even where permanent return is legally possible, a further question remains; is it the right course for this charity and this object?
For trustees, the important point is not to start with “repatriation” as either the presumed solution or the presumed problem. It is to understand the particular object, the particular institution and the legal framework within which the decision must actually be made.
Listen widely – but exercise independent judgment
Decisions concerning cultural heritage may properly involve a wide range of voices; countries and communities of origin, claimants, historians and academics, donors, staff, governments and the wider public. Their evidence and perspectives may be highly relevant. In some cases, meaningful engagement with those most closely connected to an object may be an important part of responsible stewardship. But listening carefully does not relieve trustees of responsibility for the eventual decision.
Trustees must weigh the evidence and competing considerations for themselves, in accordance with the purposes of their charity, their legal powers and their duties. This remains the case even where public interest is intense or views on either side are strongly held. Trustees should also identify and properly manage conflicts of interest or loyalty. Connections with a claimant, donor, campaigning organisation, government or other interested body do not necessarily prevent a trustee from contributing, but they may affect how the decision-making process needs to be managed.
External pressure requires similar care. Political interest, media attention and reputational considerations may all form part of the context in which a decision is made. None, however, substitutes for the trustees' own judgment. The greater the external pressure, the more important a careful and demonstrably independent decision-making process becomes.
Some decisions cannot easily be undone
Cultural objects can survive generations of trustees. Decisions about them can also do the same. A permanent transfer may be irreversible, which makes it particularly important that trustees understand the evidence, the legal position and the longer-term consequences before acting. Nor should every request necessarily be reduced to a binary choice between “keep” and “return”. Depending upon the circumstances and the legal framework, other possibilities may exist. The important governance point is not that trustees should favour one solution over another. It is that they should understand the available options before closing any of them off.
The process matters
There will be instances when trustees conclude that return is appropriate. There will be cases where they conclude that retention is. And there will be cases where the law does not permit the course they might otherwise have chosen. Good governance does not predetermine which answer trustees should reach. It determines how they reach it.
This means understanding the evidence, identifying the legal framework applying to the charity in question, recognising and managing conflicts, considering relevant interests and external representations, and exercising independent judgment. It is particularly important to do this work before a charity publicly commits itself to a position. Once expectations have been created, relationships engaged and positions announced, the trustees' room for manoeuvre may become considerably narrower.
Cultural heritage can outlive governments, institutions and generations of trustees. Decisions about its future deserve something more rigorous than the prevailing opinion, or pressure of the moment. Trustees are not owners of the past. They are its stewards.
