As the present issue went to press, there was a month to go before the fate of James Tissot’s portrait of the art dealer Algernon Moses Marsden was to be decided. In June the Minister for Arts accepted the recommendation of the Reviewing Committee on the Export of Works of Art to defer to 16th September granting an export licence for the painting, which is illustrated in this issue in Krystyna Matyjaszkiewicz’s article on Marsden’s rise and precipitous fall (pp.874– 87). The portrait, painted in 1877, is valued at £2.4 million, and it is not implausible that a British institution or private collector might make an offer. The painting would seem at home in the National Portrait Gallery, London, which owns only one oil painting by Tissot, the ever-popular Frederick Burnaby (1870). The two portraits would make a good contrast in social terms: the suavely self-confident participant in Britain’s colonial wars and the scarcely less confident Marsden, a fourth-generation member of a Jewish family of tailors who had emigrated from Alsace to Essex.

As Marsden knew better than most, art has traditionally followed money and it is the greater financial resources of institutions and collectors abroad that has been the main reason why works of art have left the United Kingdom. Although the system managed by the Reviewing Committee is customarily praised for balancing the national interest in acquiring works of art for the public against the rights of private owners, it is largely ineffectual in preventing the export of very expensive works. [1] The current focus of debate on museum collections in Britain, however, is not on keeping objects in the country, as it has been for most of the past century, but on the everincreasing questioning of the right of museums – in Britain and across the world – to retain objects to which other countries may have greater claim, and in particular works acquired as a result of conquest and other forms of colonial violence.

This fraught issue is the subject of guidelines published last month by Arts Council England (which also administers the export review system), Restitution and Repatriation: A Practical Guide for Museums in England. [2] The guidelines set out the procedures to be followed by a museum when it receives a request for restitution. Emphasis is placed on understanding the object and its provenance, the need for each party to acknowledge the other’s objectives and the obligation to involve all stakeholders. The guidelines seek to make the process positive: ‘Considering a claim for restitution can offer the opportunity for museums to develop their collections knowledge and research, to build relationships with originating communities, to open up dialogue around contested items and to create opportunities for discourse and discussion around cultural heritage’ (p.2).

 The reality is of course often very different, and the guidelines might have offered greater recognition of the fact that an obligation to undertake detailed provenance research and seek expert legal advice comes at a financial cost that can be burdensome for underfunded museums, but the publication brings welcome clarity to the essential point that ownership of an object is ultimately a legal issue and can only be resolved by legal means, which need not necessarily be contested. That may mean, for example, that a museum may not have title to a work of art in its possession because it was recently stolen from its legal owner. In other instances it may have a legal title that is overridden by legislation, most significantly for works of art in public collections in the United Kingdom the Dealing in Cultural Objects (Offences) Act, which makes it an offence to deal in cultural objects unlawfully excavated or exported after 2003, and the Holocaust (Return of Cultural Objects) Act 2009, which allows institutions that are forbidden by law to deaccession objects the freedom to transfer items claimed in relation to events that happened during the Nazi era (1933–45).

The greatest difficulties arise when the claim on an object is based on ethics rather than law. This issue has arisen recently with most force in the case of the so-called Benin Bronzes (which are in fact made of brass). The history of these objects, looted by British troops in 1897, is well understood and there is widespread recognition of Nigeria’s moral – but not legal – claim on them. Some of the organisations that are free to hand them back have done so: last month, for example, the Horniman Museum and Gardens in south-east London agreed to transfer ownership of its seventy-two bronzes to Nigeria’s National Commission for Museums and Monuments. The largest collection of the bronzes is in the British Museum, London, which is prevented from deaccessioning by the terms of the British Museum Act 1963 and the Heritage Act 1983. As the Arts Council’s guidelines stress, there are ways of dealing with restitution claims that stop short of transferring ownership, such as loans or making digital copies available, as the British Library, London, did in 2019 when it gave Ethiopia’s National Library digitised versions of over one hundred of the manuscripts looted by British troops from Maqdala in 1868, although the Ethiopian authorities stressed that the issue would finally be resolved only by returning the manuscripts themselves when conditions in the country make that a practical proposition.

Although the British Government has said that in the case of national collections, such as the British Museum, restitution is a matter for the institution’s trustees, no change to the legal ownership of the museum’s bronzes can take place without legislation. The federal government in Germany set a precedent in June by signing a restitution agreement with Nigeria to allow for ownership of over one thousand Benin objects in the country’s museums to be returned. However, this is not a matter that can be dealt with at government level on a case by case basis, especially when it involves more complex or blurred moral issues than those of the Benin bronzes – need we mention the Parthenon marbles?

President Macron’s declaration in 2017 that France would take a global lead in returning objects to Africa quickly became mired in political dispute, but in January this year the Senate approved a bill to set up a national expert commission that would decide claims for restitution. If such a commission comes into being it may well provide a model for what might happen in Britain. The creation of such an independent forum with the power to resolve restitution claims would be a way to end accusations that the national museums and the Government are passing the buck between them about the issue. There is precedent in Britain for such commissions or committees to intervene in issues of ownership of cultural artefacts, not least the Reviewing Committee on the Export of Works of Art, although there would almost certainly be reluctance by the present Government to endow such a body with the power to decide finally what should leave the country as well as what should stay.

[1] See Editorial: ‘Going, going, gone’, THE BURLINGTON MAGAZINE 163 (2021), p.995.

[2] Available at https://www.artscouncil.org.uk/publication/restitution-andrepatriation-

practical-guide-museums-england, accessed 18th August 2022.