Attorney-General v British Museum

A statutory prohibition on disposing of objects in a national museum’s collection cannot be displaced by a moral obligation or by the Re Snowden jurisdiction. The court must give effect to the statutory scheme and cannot create implied exceptions where Parliament has specified express exceptions. A bona fide compromise may nevertheless transfer an object if it establishes that the object was never vested as part of the collection. “Disposition” is wide enough to include deliberately failing to rely on limitation provisions where that omission is intended to transfer the object. Absent an applicable statutory exception, only further legislation or a bona fide compromise can authorise restitution.

The Attorney-General sought declarations on a Part 8 claim concerning four drawings held by the Trustees of the British Museum. The assumed facts were that the drawings had been looted from Dr Feldmann in 1939 and acquired by the Museum, but that his heirs had no existing legal or equitable claim to them. The Trustees considered themselves morally obliged to return the drawings and asked whether the jurisdiction recognised in Re Snowden could authorise restitution despite section 3(4) of the British Museum Act 1963. The claim also raised whether the Trustees could decline to rely on limitation legislation in order to achieve the same result.

1. The court answered questions 1(a), 2 and 3 in the negative. Questions 1(b) and 1(c) did not arise and were not answered.
2. Section 3(4) of the British Museum Act 1963 applies to objects vested in the Trustees as part of the Museum’s collections. On the assumed facts, the four drawings fell within that description. The Attorney-General, the Crown and the court had no power to dispense with an Act of Parliament or authorise conduct inconsistent with it (paras [36]–[38]).
3. A bona fide compromise of a claim to ownership is not an implied exception to section 3(4). If the compromise establishes that the claimant was entitled to the object, the object was never within the statutory prohibition. The same reasoning does not permit moral considerations, standing alone, to justify disposal of an object that is within the collections (paras [39]–[40]).
4. The express exceptions in sections 5 and 9 of the 1963 Act and section 6 of the Museums and Galleries Act 1992 exclude any further implied exception based on Re Snowden. A departure from the statutory prohibition would require statutory authority. The court also distinguished cases concerning limited statutory powers where no implied prohibition had arisen (paras [41]–[45]).
5. The word “disposition” has wide scope. It includes an omission intended to transfer property. Accordingly, deliberately failing to rely on applicable limitation provisions, otherwise than on legal advice, would be as prohibited as actively delivering the drawings (para [43]).
6. The result was consistent with the Spoliation Advisory Panel’s conclusion that legislation was needed to permit restitution. Only legislation or a bona fide compromise establishing entitlement could authorise transfer of the drawings (paras [46]–[47]).