Sunday, November 14, 2010
"Returning the missal seemed a symbolic gesture to help heal the wounds"
LONDON/BENEVENTO. The return of the Benevento Missal marks a milestone -- it "will be the first item of Nazi-era loot from a UK national museum to be restituted to its pre-war owner." Astonishingly, legal restrictions had prevented the enforcement of the Spoliation Advisory Panel's original decision in 2005 recommending that it be returned to its rightful owner. In the UK, artworks that form part of a public institution's permanent collection are owned by the State (as is generally the case in all European countries) and "it is not within the power of the collecting institution to deaccession any of its collection unless it is legislatively empowered to do so; it is not a matter for the discretion of the institution" (see MLA). Non-statutory bodies lacking the power to deaccession normally obtain the necessary power by looking to the Charity Commission for an order and/or consent but the British Library was created by statute, the British Library Act 1972, and is governed by its terms which constrain the Board's deaccessioning powers in several ways. Such constraints prohibited the deaccessioning of the missal and a change in law would inevitably be needed if it was ever going to be returned to Benevento (I wonder why it is that counsel spent 3 years preparing and pursuing the claim presumably aware of the enforcement issues that would ensue if the Panel adjudicated the claim in their favor). The change finally arrived with the passing of the Holocaust (Return of Cultural Objects) Act 2009 conferring power to bodies including the British Library Board "to return certain cultural objects on grounds relating to events occurring during the Nazi era." The name of the statute is misleading since it is drafted broadly enough so as to include non-Holocaust cases such as this one provided the "event" (undefined but usually the misappropriation of the object) occurred during the "Nazi era" (widely defined as the period beginning January 1, 1933 and ending December 31, 1945). The claimant is still required to seek an Advisory Panel's recommendation and its approval by the Secretary of State but the barriers to enforcement of the recommendation have been completely removed. The Benevento Missal restitution is therefore likely to be only the first case of its kind to culminate in the successful return of the looted object.