Under a new law, museums in England and Wales will soon gain unprecedented powers to deaccession objects in their collections on moral grounds. The important change to charity law was passed in February 2022 and is due to come into force this autumn.

Alexander Herman, director of the Institute of Art and Law, is due to publish a full report on the new Charities Act in October 2022. He believes “that the museum sector has not yet realised its full implications. I was surprised when we first uncovered it.”

Most national institutions either operate as charities or are governed by statute, like the British Museum. But they are currently restricted in cases of restitution by the National Heritage Act 1983, which separated statutory charities (like national museums) from all other charities. In the case of national institutions, collection objects can only be deaccessioned if they are duplicates or beyond repair. Yet under section 106 of the Charities Act 2011, non-statutory charity trustees can seek authorisation from the Charity Commission to return collection objects if there is a compelling moral obligation to do so, known as ‘ex gratia payments’.

A provision of the new Charities Act would crucially allow trustees of national institutions to seek authorisation as well. Trustees would also be able to dispose of ‘low valued’ objects without authorisation, the value threshold being dependent on the museum’s gross income.

“For the nationals, the kneejerk reaction has been: ‘We can’t do anything because of our act of parliament, the government needs to introduce new legislation’,” said Herman. “This then leads to the familiar catch-22 whereby government deflects the matter back to the trustees, claiming it has no intention of changing the act.”

The remarkable change follows a 2017 report that criticised the current act. It could symbolise a breakthrough in the longstanding debate around restitution and national institutions, but the decision to repatriate objects will still remain at the museum’s discretion and not third-party claimants.

A British Museum spokesperson said “the British Museum, like other national institutions, is an exempt charity established by statute. We are following the progress of the new Charities Act with interest.” A similar statement was also made by a spokesperson for the Victoria and Albert Museum regarding the groundbreaking law.

“It is often said that morality changes faster than the law,” explained Herman. “Here we have an example of the law playing catchup.”