An upcoming change to charity law in England and Wales will give national institutions leeway to dispose of objects on moral grounds, according to the Institute of Art and Law (IAL).
Under current legislation, charity trustees are able to seek authorisation from the Charity Commission if they feel compelled by a moral obligation to make a transfer of charity property – a voluntary gesture of goodwill known as an ex gratia payment.
The ex gratia principle was recently used by the Horniman Museum and Jesus College, Cambridge, to successfully apply for approval to transfer their Benin bronze holdings to the Nigerian authorities.
However, almost all national institutions are unable to make ex gratia transfers because they are governed by statute that prohibits them from deaccessioning collection objects, with few exceptions. This has long been a legal obstacle in discussions around restitution.
A provision in the Charities Act 2022, which is due to pass this autumn, will allow the trustees of those institutions to seek authorisation from the Charity Commission for ex gratia transfers.