53: The Parthenon Sculptures row – what is its impact for ex gratia reform and the Charities Act 2022?

The diplomatic row that broke out last week after PM Rishi Sunak abruptly cancelled his planned meeting with his Greek counterpart Kyriakos Mitsotakis ‘at the last minute’ throws into doubt when, if ever, charity law reforms on ex gratia payments under the Charities Act 2022 will be brought into force. Here, we explore further a perhaps unexpected consequence of a particular aspect of the ‘culture wars’.

Why a row now?

The question of the ownership and most suitable location of the Parthenon sculptures (formerly known as the Elgin marbles) has been a subject of controversy for some time. However, it came back into the headlines in November 2023 with various news reports of a possible deal for the return (in some form) of the sculptures to Greece.

Those reports are derived from British Museum chair George Osborne’s speech at the museum’s annual trustees’ dinner (held in the Duveen Gallery, which houses the sculptures), in which he stated his ‘hope’ that the museum ‘can reach an agreement with Greece’. He said that,

‘As Trustees, we look for a partnership with our Greek friends that requires no one to relinquish their claims and asks for no changes to laws that are not ours to write but which find a practical, pragmatic, and rational way forward’, although he acknowledged that they ‘may well not succeed’ but ‘think it’s worth trying’.

What seemed to be proposed would be a loan of sculptures in exchange for a loan of significant artefacts from Greece to the UK, the sort of loan arrangement that the British Museum (and others) frequently carries out with its counterparts in other countries. However, the prospect of the sculptures leaving these shores (on whatever basis) seems to have set up a battle in the ‘culture wars’, so that when the subject of the sculptures’ return was raised by Mr Mitsotakis in a BBC interview, it triggered the cancellation of the meeting by Mr Sunak and ignition of a diplomatic row.

Why is the government involved?

The British Museum is a charity, so it might be asked why what it does with objects in its collection is a matter for the government. The Museum and certain other ‘statutory’ charities are regulated by Acts of Parliament which, among other things restrict their power to dispose of objects. For example, the British Museum Act 1963 limits the powers of the Museum to dispose of objects in its collection, although, as noted above, it has the power to loan objects temporarily.

Such legislative restrictions on museums are not always popular with their trustees, especially in recent years when museums have become subject to, and more open to, requests for returns of artefacts of cultural significance. Last week, V&A Museum director Tristram Hunt called for trustees of museum collections to ‘have autonomy over their collections’, as well as to ‘be able to make the case whether they should retain them within the UK or loan them to other museums around the world—or indeed begin a conversation around restitution and repatriation’.

Mr Hunt called for a change in the law. A change in the law does already exist in the statute books; it just hasn’t been brought into force (yet). However, the current row over the Parthenon sculptures potentially threatens the change being brought into effect.

How might this affect changes under the Charities Act 2022?

The Charities Act 2022 (the Charities Act) introduces a number of technical changes to charity law designed to reduce unnecessary bureaucracy while maintaining an appropriate level of oversight. It was created following extensive consultation by the Law Commission and went through parliament under a special procedure for Law Commission Bills regarded as politically uncontroversial. It is surprising, therefore, to find that provisions of that Act are now threatened due to a political furore.

Those provisions relate to changes to ex gratia payments, which are payments to a non-beneficiary that charity trustees can make where they have no legal power to do so but feel a moral obligation. Because such payments are to non-beneficiaries, they are subject to control, usually by requiring Charity Commission authority.

In respect of certain statutory charities, such as the British Museum, case law has previously found that such power to authorise ex gratia payments cannot extend to such a charity where doing so would contravene the statutory prohibition on the disposal of the charity’s assets.

The Charities Act introduces some changes to the ex gratia payment regime. The changes would include allowing small payments to be made without Charity Commission authority and to create a new stand-alone statutory power for the Charity Commission, Court or Attorney General to authorise ex gratia payments. These changes were considered uncontroversial and were due to be brought into force in the Charities Act’s first implementation phase in October 2022.

However, crucially, the new powers would both apply to statutory charities, such as the British Museum, effectively permitting the Charity Commission, Court, or Attorney General to authorise a disposal that would otherwise be prohibited by the governing Act of Parliament.

The extension to such charities was highlighted in the Law Commission’s 2017 report, Technical Issues in Charity Law and accepted expressly by the government in its response in 2020, in particular at Recommendation 30: ‘the Attorney General, the court and the Charity Commission should have the power to authorise ex gratia payments by statutory charities’. It was also referred to expressly in the Explanatory Notes to the Charities Act and to the Bill on its passage through parliament. This effect of the legislation should not, therefore, have come as a surprise to government or parliament, but it seemed to do so. Their implementation was pulled on 13 October 2022 ‘until we fully understood the implications for national museums and other charities’.

In the Charities Act’s implementation plan, the provisions have ever since remained in commencement limbo as ‘under further consideration prior to commencement’.

Will the ex gratia reforms (ever) be implemented?

Ever since the commencement of the ex gratia reforms was deferred, there has been a deafening hush over their fate. The concern arising from the current row is that politicians may consider that the commencement of the reforms would be a ‘brave’ decision, given the potential for it to be spun effectively as opening the door to artefacts such as the sculptures leaving the UK.

The reforms are rather more nuanced than that. They would implement an authorisation process which could only be initiated at all in response to an application from charity trustees, following a thorough review, appropriate advice, satisfaction of other checks and balances within their governing legislation, a decision and then compiling a full case as to why an ex gratia payment should be authorised. And, of course, the existence of a power to authorise does not mean that it can or should be exercised; but that is a legal point, not a political one.

Following the row over the Parthenon sculptures last week, a ‘senior Conservative source’ was reported as saying,

‘Our position is clear – the Elgin Marbles are part of the permanent collection of the British Museum and belong here. It is reckless for any British politician to suggest that this is subject to negotiation’, while a spokesperson for the British government said there were ‘no plans’ to change the British Museum Act.

A Labour source was reported as saying that their ‘long-standing’ position was that a Labour government would ‘not change the law to allow the sculptures to be permanently moved’.

However, arguably, the ex gratia reforms would change the law to allow just that, albeit subject to safeguards approved by parliament.

Phase 3 implementation of the Charities Act is due in ‘early 2024’. It was originally meant to be the final implementation phase – it remains to be seen whether it turns out to be so.