I recently wrote a piece for the Institute of Art and Law about the recent report from the advisory committee. it can be accessed here along with many of their excellent pieces. i have also reposted it below.
Ireland’s New Framework for Restitution and Repatriation: The Advisory Committee’s Report
Ireland has never had a formal mechanism for determining restitution or repatriation claims. However, this may soon change with the recent publication of a long-awaited report from the Advisory Committee on the Restitution and Repatriation of Cultural Heritage. It was three years in the making and chaired by the Rt. Hon. Sir Donnell Deeny, who is also co-chair of the UK Spoliation Advisory Panel. Unlike the Spoliation Panel, this report is not confined to those who were dispossessed during the Nazi period. The Committee undertook research on the current state of affairs, the current legal position, international best practice, and ultimately made strong, clear recommendations to the Government, which I will set out below.
Ireland is a somewhat unusual country with regard to colonial looted artefacts, in that it can be said to be both a source country and market country. As the report observes on page vii, “Ireland was colonised, but some people from Ireland also acted as colonisers and returned home with cultural objects.”
As it was so integrated with the United Kingdom for so long, it is very likely that there are objects in both private and public collections of questionable or even obviously problematic origin. As well as this, there are objects in international museums that have come from Ireland in contested circumstances (however it is also the case that in the last century of independence many objects were simply sold at auction to the highest bidder in broad daylight, in circumstances where the fledgling State could not afford to compete). This report recognises the growing interest among the Irish public about these objects located in foreign museums (there are 6,445 in the British Museum for example), but also recognises the worrying lack of cataloguing data in Ireland, and want of guidelines and legislation to deal fairly and consistently with any claims that may arise.
The Committee first sought information through survey from a broad range of museums and other institutions around the country. Its findings were stark. For example:
- 90% of institutions lack comprehensive online catalogues
- 77% have no trained provenance research staff
- Many institutions had no restitution policy
- Funding for provenance work was inadequate
This is coupled with certain legal barriers to deaccessioning and the want of a coordinated national approach.
Thereafter, it looked at best practices around the world, and current thinking around ethical and moral issues, together with legal considerations specific to the island of Ireland. The Committee ultimately came up with the recommendation for the establishment of a formal national framework with three key elements:
1) The publication of national guidelines
2) The development of a properly supported provenance research programme
3) The creation, by legislation, of a Ministerial power exercisable on the advice of an expert advisory panel to facilitate and enable restitution, or other remedies where appropriate
1) The Publication of National Guidelines
Ireland is an outlier in Europe in that it still has not ratified the 1970 UNESCO Convention. The State did sign up to both the original Washington Principles on Nazi-Confiscated Art, and their recent update. Having said that, legislation was passed as part of the Historic and Archaeological Heritage Act 2023 to enable Ireland to ratify both the 1970 Convention and the 1995 UNIDROIT Convention. It is a matter for the Government to finalise the ratification, however it seems to be simply a matter of time. And I should say, the report is very clear in its recommendation that Ireland proceed to ratify both.
With regard to the Guidelines themselves, the Committee went as far as preparing a draft version. These appear to be heavily influenced by the UK’s Art Council Guidelines which of course the Institute of Art and Law were commissioned to create. The draft guidelines explicitly reference drawing upon these UK guidelines (with permission and thanks). It is unusual and welcome to see a report not only recommend the creation of a set of guidelines, but also to go so far as to draft the guidelines themselves, reducing the scope for ambiguity or delay.
2) The Development of a Properly Supported Research Programme
The report regularly references the goodwill and willingness of all those (107 institutions) that were surveyed or interviewed as part of its fact-finding mission. However, it also points to the severe lack of provenance research that is being funded or undertaken in Ireland. There is a huge lack of digitisation and online cataloguing. The report states that
Ireland’s responses to issues of restitution and repatriation must involve more than addressing claims as they arise. Ireland should embed the principles of transparency, accountability, and ethical stewardship in an active and sustained approach to restitution and repatriation (page vii).
The report points to the Washington Principles here as creating expectations regarding the identification, documentation and publication of provenance information and also to the need for transparency and online access (page 33).
Ultimately the recommendation is that the Government establish a National Provenance Research Programme in a phased manner. It recommends that priority be given to collections that may be associated with heightened ethical or legal sensitivity and points to Austria, where a pro-active model promoting shared services and pooled expertise was of benefit to smaller institutions.
3) The Creation of a Ministerial Power Exercisable on the Advice of an Expert Advisory Panel to Facilitate Restitution
The Committee has recommended the establishment of an expert panel similar in structure to the UK’s Spoliation Panel, but much broader in scope. It is hoped that claims could at first instance be resolved by individual institutions. However if they cannot, the RRAPI (Restitution and Repatriation Advisory Panel of Ireland) would be available to work in parallel with the institution-led process, to hear claims and make non-binding expert recommendations – in the form of, for example, restitution, compensation or implementation of a notice – to the Minister. As part of this, there would be legislation put in place to establish this panel, and to give the Minister power to direct or authorise compliance, even where existing statutory or other legal restrictions exist. There would be an indemnity for institutions for any claims against them as a result of the restitution of objects, such as for a breach of any trust, statute or contract. If an institution is legally permitted to restitute objects they should do so without reference to the panel, if they consider it appropriate and lawful.
Finally it is recommended that the legislation should make it explicitly clear that human remains fall within its scope, while also recognising however that they are uniquely sensitive and should have a distinct status as opposed to being a sub-category of cultural object.
The report sets out the proposed structure of the panel in detail as well as the processes. It attaches the UK Advisory Spoliation Panel’s Guidance Notes for Parties as an appendix.
Conclusion
The report is refreshing in its unequivocal recommendations. It is comprehensive in a way that reports often are not; there is little room for uncertainty. The report identifies the problems, proposes solutions and provides a clear roadmap for implementation. It is now up to the Government. They have been given a remarkably clear, step-by-step guide, with ready-to-go guidelines and processes, including suggested legislative Heads of Bill.
It will require investment, leadership and a willingness at Government level to implement the recommendations. The report states that should Ireland implement all of the recommendations, it will position itself at the forefront of international best practice in the field. Until now, claims have been addressed on an ad-hoc basis, with no dedicated national process.
Art Law in Ireland 