Attorney-General v Trustees Of The British Museum (2005)
The express prohibition in the British Museum Act 1963 s.3(4), on the disposal of objects in the collections of the British Museum, prevented the defendant trustees from returning drawings to their owners. The fact that the trustees were under a moral obligation could not justify a disposition in breach of s.3(4) and neither could the Attorney-General sanction their return by relying upon the decision in Re Snowden (1970) Ch. 700. Only legislation or a bona fide compromise could entitle the trustees to return the drawings.
The Attorney-General sought a determination in respect of four drawings held in the collections of the British Museum. Following a holocaust restitution claim by a third party for the drawings, the defendant trustees wrote to the Attorney-General requesting that he sanction the return of the drawings, following the decision in Re Snowden (1970) Ch. 700, as the trustees were under a moral obligation to return them. The Attorney-General was concerned whether the express prohibition in the British Museum Act 1963 s.3(4) on the disposal of objects in the collections of the British Museum prevented the drawings being disposed of under the Snowden principle. To resolve the question, he issued the instant proceedings and asked the court to determine a number of questions. The Attorney-General argued that the court should not direct or approve anything which was inconsistent with the Act. He contended that the powers of a statutory corporation such as the British Museum extended no further than what was expressly stated in its governing statutes and was necessarily and properly required for carrying out the purposes of its incorporation or such as might fairly be regarded as incidental to or consequential to those purposes. He further submitted that where Parliament had specified by statute where the public interest lay, neither the court nor the Attorney-General could take a different view.
(1) Neither the Crown nor the Attorney-General had any power to dispense with due observance of Acts of Parliament. The courts and judges were committed to upholding the law and not sanctioning departures from it without lawful authority. (2) It was possible that the third party could, in separate proceedings, establish title to the drawings with the result that they would never have been part of the collections of the British Museum. In that event, s.3(4) would not preclude a disposition to the third party. (3) A compromise of the third party's claim did not involve any breach of s.3(4) as bona fide compromises of the issues of fact were as binding as the decision of the court to that effect, Binder v Alachouzos (1972) 2 QB 151 considered. The power to compromise was not an unexpressed exception to s.3(4) but the consequence of its limited application only to objects which were part of the collections. The fact that moral considerations might be involved in an exercise of the power to compromise did not justify the non-application of s.3(4). (4) Dispositions by the trustees could only be justified by reference to a statutory exception. The Snowden jurisdiction did not constitute an implied exception to s.3(4). In fact, the very existence of the express exceptions to s.3(4) negated the recognition of additional implied exceptions. The word "disposition" in s.3(4) was broad enough to include omissions. Thus, a failure to rely upon the relevant provisions of the Limitation Act 1939 and Limitation Act 1980, otherwise than on legal advice, in order to effect a transfer, was also prohibited. The fact that the courts had in other cases altered trusts or other provisions of a charity regulated by statute was of no significance as s.3(4) clearly imposed a prohibition and the extent of the prohibition was clear. (5) In sum, a moral obligation could not justify a disposition by the trustees of an object forming part of the collections of the museum in breach of s.3(4) and there was nothing in Snowden to suggest otherwise. Only legislation or a bona fide compromise of a claim by the third party could entitle the trustees to transfer the drawings. In the instant case, there was no statutory exception and it was beyond the power of the Attorney-General to provide one.