22 November 2021

It’s not up to Boris or the British Museum to return the Elgin Marbles

By Will Havelock

An Ancient Greek transported to modern Britain might recognise one or two things, not least the bust of Athenian politician Pericles sitting on the desk of our Prime Minister. While he might raise a wry chuckle at the immutability of politics, our Hellenic time-traveller would probably be rather more surprised to find that some of the statues and friezes which Pericles erected in the Parthenon have also found their way to contemporary London.

That collection, better known as the Elgin Marbles, has been in Britain for over 200 years, housed for almost all of that time in the British Museum. More or less since its independence from the Ottomans in 1830, the Greek government has been pressing for the return of the Marbles to Athens. Greek prime minister Kyriakos Mitsotakis raised it with Johnson during his recent visit to London and yesterday penned an op-ed for the Mail on Sunday urging the PM to ‘take a bold step forward and, with the British Museum, repatriate the Parthenon Sculptures’. For its part, Downing Street maintains that ‘the UK’s longstanding position [is] that this matter is one for the trustees of the British Museum’.

Is this Boris trying to disclaim responsibility for another difficult decision? Surely, as Prime Minister of the United Kingdom, he can direct the trustees to act in a certain way? Even if he does not have the power to micromanage them, Johnson must hold significant influence over the trustees. The Prime Minister appoints 15 of them, and the chair of trustees is none other than his old (sort of) pal George Osborne. But who is it who actually decides whether the Marbles stay or go?

The answer comes from the British Museum Act 1963. Unlike most charities and museums, the British Museum was founded by an Act of Parliament, originally during the reign of George II. This legislation provides that ‘objects vested in the Trustees as part of the collections of the Museum shall not be disposed of by them’, except in limited circumstances. The basic rule then is that the trustees cannot give away or sell or otherwise get rid of objects in the museum’s collections.

There are, however, some limited circumstances set out in the Act when the trustees can dispose of objects. They can dispose of duplicate items, certain objects made after 1850, objects which are ‘unfit’ to be kept, objects which have become ‘useless’ due to damage or deterioration, and they can transfer objects to certain other national museums such as the National Gallery and the V&A. 

Evidently, the Marbles are not duplicates, and nor were they made after 1850. While they may have sustained some damage while under the custody of the British Museum, the Marbles are far from useless due to that damage. While the trustees could transfer them to some other British museum, that would just shift the issue onto some other poor group of trustees.

Could the Marbles be ‘unfit’ to be kept? The legislation does not expound on what this is meant to mean, but in its policy for dispositions the trustees explain that they consider this to mean an object being ‘no longer useful or relevant to the Museum’s purpose. Given the museum’s purpose is to ‘cover all fields of human knowledge’, it seems unlikely they will ever consider the Marbles unfit to be kept. In any event, the policy also says that unfit items must be destroyed, which will probably irk the Greek government even more than keeping them.

It seems then that there is a complete legislative ban on the trustees shipping the Marbles off to Athens. This means it is not up to the trustees, or indeed the Prime Minister, to decide whether to keep the marbles or not. The law is quite plain that the trustees have to keep them, as none of the exceptions apply.

That said, there was a court case in 2005 which sought to challenge just how watertight this legal ban is. It centred on the heirs of a Czech lawyer who were seeking to recover four Old Master drawings which had been stolen by the Nazis in 1939 and ended up in the British Museum’s collection. The trustees were sympathetic to the claim, and went to the High Court to see how they might get around the ban on disposals. The clever legal ruse was to try and apply a precedent in charity law from 1970 which allows charities in exceptional circumstances to give up their assets where it is ‘morally wrong’ for them to keep those assets. The idea is that charities are meant to be institutions for the benefit of society, so the law should not force charity trustees to act immorally.

However, the High Court ruled that this morality exception did not apply to the Nazi loot in the British Museum. Acts of Parliament are the supreme law of the land, and the court could not override clear wording of the 1963 Act banning disposals. The trustees may have very understandably had moral reservations about denying the return of art stolen by the Gestapo, but Parliament in its infinite wisdom had not allowed moral concerns to weigh on the trustees’ decisions. The judge ruled that the only way for the drawings to get to the heirs was through the intervention of Parliament – through a new Act or some other statutory procedure – or for the heirs to show that the objects were not the legal property of the trustees at all, so were not part of the collection.

This means that the trustees cannot decide the future of the Elgin Marbles – they are hamstrung by the law. It is possible, though unlikely, that a future court case which goes to the Court of Appeal or Supreme Court might overturn the High Court’s decision and allow the trustees to consider moral concerns. Realistically, the only way the marbles are going to leave these shores is if Parliament takes action. For the time being, a latter-day Pericles commands a majority in the House of Commons, and he seems just as unlikely as his Greek hero to give them up.

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Will Havelock is a writer.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.