Musrum Managemrntond Curatorship, Vol. 16, No. 2, pp. 105-I 10, 1991 Published by Elsevier Science Ltd. All rights reserved
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Editorial Legal Risks Facing Museums in England and Wales
Publication of the Museums & Galleries Commission consultative green paper, The Legal Status of Museum Collections in the United Kingdom (e&ted by Jer- emy Warren, ISBN 0 948630 40 X), has brought these problems back into the public arena and this document has to be read in the context of the views of the former Department of National Heritage, expressed earlier in 1996 in Treasures in Trust-A Review of Museum Policy, not least the statement that a museums collections are to be held on behalf of the public as inalienable cultural assets. Today this is patently not the case and it is arguable that collections in the pos- session of English and Welsh institutions calling themselves museums have prob- ably never been at greater risk. Any failure of the law to recognise the special status of museum collections is compounded by the current drive to reduce public expenditure on them, partly through increased trading activities. Consequently the Museums & Galleries Commission has been reviewing the options for legal reform, and possible models, with a view to advising Govern- ment, and in conjunction with the major firm of London lawyers, Allen & Overy, the Commission organised a seminar on The Legal Status of Museum Collec- tions in the United Kingdom at their offices in the City of London, 24 April 1997. This seminar is seen as a substantial contribution to the review and it set out to look at the objectives going forward in terms of, for example, whether recommendations made in the consultative green paper are practical and tenable, whether the law does enough to protect collections, and what practical steps could or should be taken in respect of collections within the United Kingdom.
What then are the main legal risks currently facing museums and their col- lections? though this question immediately demands clarification of the purposes for which museums have been established and thus the legal environ- ments within which they acquired their collections and now hold them. In the view of the scholar-curator for whom the central function of museums is archival, objects are entrusted to museums-by gift, bequest or purchase-for their preservation by that institution for the benefit of the community (at least in theory). That is preservation in kind and within a specific intellectual environ- ment. However, for reasons better known to historians of the Law in England and Wales than to museum curators, this fundamental tenet of museums since the time of Elias Ashmole (himself a distinguished lawyer) has been largely ignored by the Law or has provided a challenge to those of its practitioners wishing to circumvent its obligations. You need look no further than the Hol- loway College saga.
At the heart of these problems is the fundamental issue that the rule against perpetuities forces museums to set themselves up as charities rather than public benefit trusts, while the maintenance of an archive of objects in perpetuity for
the benefit of the public is not of itself a charitable purpose defined by the 1601 Act and subsequent legislation. The various fudges forced onto the Charities Commission understandably do not inspire great confidence when trustees choose to be uncooperative, and if the charitable object of a particular trust is to be educational, it is self-evidently undesirable for that flag of convenience to sup- plant the primary purposes of the trust when they include the preservation of specific chattels in perpetuity. Indeed, it is essential that any such trust is so drawn up as to ensure that the collection is maintained inalienable in perpetuity for that primary purpose, and that it is not merely held as a disposable asset of a trust which includes educational purposes.
A failure to differentiate between chattels held as the object of a trust and those held as assets of a trust is probably the greatest legal risk to which museum col- lections are exposed today. Property held as the object of the trust has no pecuni- ary value as far as that trust is concerned. The trust is more the guardian of the property than its absolute owner, and the beneficiaries of the trust are the ultimate owners. Consequently, if disposal is under consideration because that trust is unable to continue to discharge its obligations, that property should always be handed over in kind to another suitably constituted trust which is ready and able to discharge the obligations placed upon the first trust in respect of that property. In recognising the changing abilities of trusts to discharge their obligations faith- fully, due to lack of funds and other predicaments, Cy-pres surely applies in this context just as much as it does with regard to convertible assets when a trust is wound up?
The paragraph in the consultative green paper on Original purpose and Cy-pres is very interesting, but when the Court is called upon to clarify the intentions of the benefactor-or even the contract entered into by Sir William Burrell many years before his death-there is also the unwritten component which may be described as the intellectual environment within which the original transfer of property was made. As the pioneer in this field, Elias Ashmole could not refer to any such common understanding of the nature of a museum and much of his tortuous negotiations with the University of Oxford were to establish precisely these principles. Subsequent benefactors have been able to take advantage of that common understanding, and failure to recognise this component constitutes a particularly insidious legal risk.
Gifts and bequests to museums, and even certain purchases made specifically for museums by persons with trustee responsibilities for their collections, embody the common understandings of the time as to what constituted a museum and consequently the future envisaged for the property taken into its care. This has meant, at least until recent years, inalienability and, in theory, conservation in perpetuity for the benefit of the public or a section thereof. Indeed, much of the intentions of the benefactor are not spelt out in mind-numbing detail in the accompanying documentation because those intentions were encapsulated in the common understanding of the intellectual constructs of the time, not least that cultural entity called a museum. Only in recent decides have the mean- ings become sufficiently blurred as to require additional definition in the documentation in order that the benefactors wishes would be absolutely clear to a contemporary audience. This approach fits in well with the concept of property which constitutes the fundamental purpose of the trust as set out in
the consultative green paper, and we ignore or attempt to circumvent it at our peril. It apposite to suggest that the rules applying to heirlooms have a certain relevance here. The life tenant of an heirloom may only enjoy it in kind and is prohibited from converting it or committing waste in respect of it. In principle, heirlooms cannot be capitalised, at least not without the consent of the Court and those beneficiaries in being. The old continentalfidecommesso operated in much the same way, and this way of thinking could be explored with advantage.
Another important legal risk stems from the situation in which the Local Authorities find themselves. Their trustee responsibilities were clarified by Lord Halsbury back in the 1%Os, but those principles accord ill with the new trading culture being adopted today. The Museums & Galleries Commission Registra- tion Scheme specifically prohibits the mortgaging of collections by institutions seeking Registration, and it is useful to adopt the position that, in accepting the Commissions requirements in this respect, those museum authorities applying for registration have pro tern publicly withdrawn their museum collections from the general collateral enjoyed by bodies in which the ownership of those collec- tions is currently vested. One may in principle welcome the former Secretary of States rather vague proposals that the Local Authorities should establish their museums as charitable trusts, though a strong case can be made that the Local Authorities are already single trustees in respect of their museum collections and are not-as compared to their office furniture and vehicles-absolute owners. Confirmation of this would have the desirable effect of removing the collections of registered museums at least from general collateral, in contrast to the largely illusory protection offered by Registration which can be withdrawn from at will.
The concomitant loss of pecuniary value might in turn facilitate their transfer into independent holding trusts which do not have the power to borrow against their collections, though it should always be remembered that the protection so afforded is directly proportional to the genuine independence of those trustees and little useful purpose is served by the exercise if all those trustees are active local politicians. There is no need to spell out the impropriety-at least within the United Kingdom-of attempting to use collections assembled for museum purposes as trading capital since benefactors did not entrust objects into the care of museums to be used as collateral in commercial activities.
Nevertheless, most citizens of the United Kingdom remain blissfully unaware of the extent to which Local Authority and university collections are already mortgaged, in breach of the requirements of Registration, and are thus in danger of being deaccessioned to meet obligations entirely unrelated to the muse