Britain’s Department for Culture, Media and Sport (DCMS) has confirmed it will review the exclusion it imposed on national collections that prevents them from returning cultural objects on moral grounds. The review provides an opportunity to reverse an unwelcome inconsistency in the UK Charities Act 2022.

Implementation of the Act, delayed until November 2025, now permits charities to make small ex gratia disposals of charity property on moral grounds - without the oversight of the Charity Commission or the Attorney General.

But in an unusual step, sixteen statutory national museums and galleries, all registered charities, were told these new rules contained in provisions 15 and 16 of the Act would not apply to them. This was an unexpected and disturbing development as exclusion impacts on their potential to engage in any kind of discussions that may lead to full restitution, even for objects of the lowest financial value.

DCMS parliamentary under-secretary Stephanie Peacock explained in a statement made in November that government does not want these new powers to override existing restrictive clauses that prevent the disposal of objects by national collections. The Minister also added the full implications of the Act had not been “debated in Parliament”.

Legal experts have cried foul. In a recent blog, the law firm BatesWells maintains “this argument is incorrect: the impact on statutory charities was clearly explained in the material before Parliament.” The blog also points out it is “constitutionally beside the point, because it is not for government to render a law nugatory because it did not think that Parliamentarians focussed on the ‘right’ issues.”

Further criticism has come from within Parliament itself. A report from the Joint Committee on Statutory Instruments (JCSI), a cross-part committee of MPs and peers that scrutinises secondary legislation, says that “if the government disagrees with legislation that Parliament has passed, the correct approach is to pass new legislation rather than seeking to undercut it by simply not commencing it.”

The JCSI report did not rule the action unlawful because DCMS has confirmed the exclusion was meant to be temporary and not permanent. The Department has also committed to undertake a review of the Charities Act 2002 within five years of it receiving Royal Assent. In other words, by latest February 2027.

By agreeing to this review, DCMS does not guarantee a change in direction. It could still lead to new legislation that maintains the status quo. However, it is encouraging the Department believes the issue should be subject to further Parliamentary debate, as well as to consultation with the sector and the public. We hope DCMS and the government will use the next twelve months to undertake a serious review of how other non-statutory museums and collections are responding to legitimate claims for restitution.

Why should government not fear the alignment of an ex gratia policy for national collections with other non-statutory museums? When we first reported these developments in 2022, we drew attention to the new qualifying rule that restricts a charity's disposals only to those objects of  'lower value' and where a moral obligation can be demonstrated. According to the Act, the value of a qualifying object should not exceed the relevant threshold as defined in subsection 6 of provision 15. For objects that exceed this threshold, authorisation would still be required by the Charity Commission, the Attorney General or a court.

Assuming no change is made to this qualifying rule, we still anticipate government can agree an alignment without any risk of widespread disposals of high profile objects. Where trustees may feel there is a moral obligation to consider restitution, the value of the object must be taken into account. Trophy objects are unlikely to fall under the required threshold and the number of disposals by national collections, as predicted by Alexander Herman, Director, Institute of Art and Law in 2022, will continue to be few in number.