Spoliation Advisory Panel (Hansard, 13 April 2000)

§ Lord McIntosh of Haringey

Following consultation on our proposals on both the membership and the terms of reference, I am now able to do so. In establishing the Spoliation Advisory Panel the Government's aim, by providing an alternative to litigation, is to facilitate a just resolution of claims made for cultural objects that may have been looted in the Nazi era between 1933 and 1945.

The membership of the panel will be:

Chair: The Rt Hon Sir David Hirst
Mr Donell Deeny QC
Professor Richard Evans
Sir Terry Heiser
Professor Peter Jones
Mr Martin Levy
Mr Peter Oppenheimer
Professor Norman Palmer
Ms Anna Southall
Dr Liba Taub
Baroness Warnock

The constitution and terms of reference proposed for the panel are as set out. These have been revised as a result of consultation and the Government believe they offer a fair way forward. The panel will be able to advise not only claimants and those who hold the items in question in their collections, but also the Government themselves. The Government intend that the panel should begin work as soon as possible.

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SPOLIATION ADVISORY PANEL

CONSTITUTION AND TERMS OF REFERENCE

Members of the Panel

1. The members of the Spoliation Advisory Panel ("the Panel") will be appointed by the Secretary of State on such terms and conditions as he thinks fit. The Secretary of State shall appoint one member as Chairman of the Panel.

Resources for the Panel

2. The Secretary of State will make available such resources as he considers necessary to enable the Panel to carry out its functions, including administrative support provided by a Secretariat ("the Secretariat")

Functions of the Panel

3. The task of the Panel is to consider claims from anyone (or from anyone or more of their heirs) who lost possession of a cultural object ("the object") during the Nazi era (1933–1945) where such object is now in the possession of a UK national collection or in the possession of another UK museum or gallery established for the public benefit ("the institution"). The Panel shall advise the claimant and the institution on what would be appropriate action to take in response to such a claim. The Panel shall also be available to advise about any claim for an item in a private collection at the joint request of the claimant and the owner.

4. In any case where the Panel considers it appropriate, it may also advise the Secretary of State

(a) on what action should be taken in relation to general issues raised by the claim, and/or
(b) where it considers that the circumstances of the particular claim warrant it, on what action should be taken in relation to that claim.

5. (a) In exercising its functions, while the Panel will consider legal issues relating to title to the object (see paragraph 7(d) and (f)), it will not be the function of the Panel to determine legal rights, for example as to title;
(b) The Panel's proceedings are an alternative to litigation, not a process of litigation. The Panel will therefore take into account non-legal obligations, such as the moral strength of the claimant's case (paragraph 7(e)) and whether any moral obligation rests on the institution (paragraph 7(g));
(c) Any recommendation made by the Panel is not intended to be legally binding on the claimant, the institution or the Secretary of State;
(d) If the claimant accepts the recommendation of the Panel and that recommendation is implemented, the claimant is expected to accept the implementation in full and final settlement of his claim.

Performance of the Panel's functions

6. In performing the functions set out in paragraphs 3 and 4, the Panel's paramount purpose shall be to achieve a solution which is fair and just both to the claimant and to the institution.

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7. For this purpose the Panel shall:—

(a) make such factual and legal inquiries (including the seeking of advice about legal matters, about cultural objects and about valuation of such objects) as the Panel considers appropriate to assess each claim as comprehensively as possible;
(b) assess all information and material submitted by or on behalf of the claimant and the institution or any other person, or otherwise provided or known to the Panel;
(c) examine and determine the circumstances in which the claimant was deprived of the object, whether by theft, forced sale, sale at an undervalue, or otherwise;
(d) evaluation, on the balance of probability, the validity of the claimant's original title to the object, recognising the difficulties of proving such title after the destruction of the Second World War and the Holocaust and the duration of the period which has elapsed since the claimant lost possession of the object;
(e) give due weight to the moral strength of the claimant's case;
(f) evaluate, on the balance of probability, the validity of the institution's title to the object;
(g) consider whether any moral obligation rests on the institution taking into account in particular the circumstances of its acquisition of the object, and its knowledge at that juncture of the object's provenance;
(h) take account of any relevant statutory provisions, including stipulations as to the institution's objectives, and any restrictions on its power of disposal;
(i) take account of the terms of any trust instrument regulating the powers and duties of the trustees of the institution, and give appropriate weight to their fiduciary duties;
(j) where appropriate assess the current market value of the object;
(k) formulate and submit to the claimant and to the institution its advice in a written report, giving reasons, and supply a copy of the report to the Secretary of State, and
(l) formulate and submit to the Secretary of State any advice pursuant to paragraph 4 in a written report, giving reasons, and supply a copy of the report to the claimant and the institution.

Scope of Advice

8. If the Panel upholds the claim in principle, it may recommend either:

(a) the return of the object to the claimant, or
(b) the payment of compensation to the claimant, the amount being in the discretion of the Panel having regard to all relevant circumstances including the current market value, but not tied to that current market value, or
(c) an ex gratia payment to the claimant, or
(d) the display alongside the object of an account of its history and provenance during and since the Nazi era, with special reference to the claimant's interest therein; and
(e) that negotiations should be conducted with the successful claimant in order to implement such a recommendation as expeditiously as possible.

9. When advising the Secretary of State under paragraph 4(a) and/or (b), the Panel shall be free to recommend any action which it considers appropriate, and in particular may, under paragraph 4(a), direct attention of the Secretary of State to the need for legislation to alter the powers and duties of any institution.