Immunity from Seizure
The Tribunals Courts and Enforcement Act 2007 protects objects on loan from abroad which are held in temporary public exhibitions in UK museums and galleries. The legislation was introduced in response to concerns from museums that an increasing number of international lenders were refusing to lend items to UK museums without a guarantee of their safe return.
The steps below detail how Scottish museums and galleries can seek approved status via the Scottish Government. A court cannot make an order to seize an object that has been loaned from abroad for an exhibition where the conditions for protection are met, except where the court is required to make that order under EU law or the UK’s international obligations.
Conditions of protection
An object is only protected from seizure if all the conditions set out in section 134 subsection (2) of the Act are met when the object enters the UK. In summary the conditions are:
- the object is usually kept outside of the UK;
- the object is not owned by a UK resident;
- import of the object does not violate any law;
- the object is brought into the UK for temporary public display by an approved museum or gallery
- the museum or gallery has published relevant information about the object where required by regulations
Objects will only be protected if the borrowing museum has complied with the requirements set out in the Protection of Cultural Objects on Loan (Publication and provision of Information) Regulations 2008. These Regulations require the borrowing institution to publish detailed information about the object at least four weeks before the day on which the object enters the UK. This enables anyone with an interest in any of those objects to raise questions about them before they come to the UK.
The approval process
The authority that handles approving a museum or gallery will depend on where the institution is located.
Approved Status is the certification which allows an institution to offer immunity from seizure for loans from abroad. In order to obtain Approved Status, an organisation must be able to prove it’s an ethical organisation, following due diligence processes for examining the history of loans, and that they will not borrow items if there’s any suspicion that they were stolen, looted, or illegally obtained.
Once Approved Status is granted, the museum or gallery can simply list the works on its website with details of the loan and of the exhibition in which the loaned object(s) is displayed. Immunity will be automatic. Full details are provided on the ICOM UK website.
Scottish Ministers act as the authority in Scotland and decide whether to grant Approved Status to museums and galleries within Scotland.
- To be approved, museums or galleries must demonstrate that their procedures for undertaking due diligence comply with the 2005 Department for Culture, Media and Sport (DCMS) guidance Combating Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material.
Once you have submitted an application, the Scottish Government will contact Arts Council England (ACE) asking that they confirm contact details and availability for at least 2 assessors. Assessors are normally drawn from ACE’s Acceptance in Lieu Panel. The Scottish Government will send your application to the nominated assessors and act as an intermediary for any assessor requests for clarification or further information. You may need to resubmit based on these clarifications.
If the assessors recommend your institution is given Approved Status, the Scottish Government will seek Scottish Ministers’ agreement to grant said status. Once granted, DCMS will update their published list of approved institutions. Institutions holding objects which are protected under the Act should include details of this on their website.
How to apply
To gain approval museums should:
- Complete the application questionnaire below
- Return the completed questionnaire by email to the Culture and Historic Environment Division (CHED) at the Scottish Government at least 18 weeks before an object requiring protection under the Act enters the UK
Responsibilities of approved status institutions
The Scottish Government requires approved institutions to include a short report on their activity under immunity from seizure in their published annual reports. A report can be produced separately if the institution does not have an annual report. The report should provide information on the following areas:
- When did the institution receive Approved Status?
- Were there any conditions attached? If so, what were they and how did the institution address the issues raised? What new measures have been put in place as a result?
- List all exhibitions in the past reporting year (title, dates) which include items for which immunity from seizure was requested.
- State the number of objects in each exhibition that had relevant information published on the institution’s website in accordance with the Protection of Cultural Objects on Loan (Publication and Provision of Information) Regulations 2008. A copy of the institution’s website pages on immunity from seizure, showing the list of objects, should also be attached separately.
- Describe concerns or issues raised during provenance research. For example, were any loan requests withdrawn because of the research?
- Report any enquiries or claims related to protected objects and include descriptions as to how these were dealt with.
Process for dealing with claims
Scottish Government should be immediately informed if an approved institution receives any claims or enquiries under section 7 of the Regulations.
Reports for consecutive years will only need to focus on points 3-6 above. If your museum or gallery doesn’t have an exhibition that includes a protected object within a reporting year then a report isn’t necessary. You may wish to report any improvements made to your due diligence policies during the year and this would be encouraged, for example, any new training courses that your workforce has undertaken.
The Acceptance in Lieu Panel of Arts Council England will use your annual report as a basis for monitoring your organisation’s continuing compliance with the standards set and your activity under immunity from seizure. They may contact you about your return and carry out spot-checks occasionally, for example, in relation to an exhibition.
Scottish Ministers can withdraw Approved Status if it appears that an approved organisation’s procedures for establishing the provenance or ownership of objects are inadequate. Approved Status can also be withdrawn if an organisation has failed to comply with a requirement of the Protection of Cultural Objects (Publication and Provision of Information) Regulations 2008 on the publication of information about any objects to be borrowed.