should it exclude the Snowden jurisdiction. Both, he submitted, are the normal
incidents of a charitable trust.
35.
In reply counsel for the Attorney-General submitted that in no previous case was there
any impediment to the exercise of the Snowden jurisdiction such as s.3(4). It is that
provision, he submitted, which makes all the difference.
Conclusions
36.
It is appropriate to acknowledge at the outset the evident sincerity of all parties to
these proceedings. The circumstances give rise to a dilemma for each of them. It is
in precisely those circumstances that it is essential to ascertain the relevant principles
of law and to apply them so that the dilemmas are resolved by the law and not
otherwise. It is convenient to start with a series of propositions, many of them
elementary.
37.
First, neither the Crown nor the Attorney-General as a minister of the Crown has any
power to dispense with due observance of Acts of Parliament. The pretended power
of dispensing with or suspending Acts of Parliament was emphatically rejected by the
Bill of Rights 1688. Similarly the Courts and the Judges are committed to upholding
the law, not sanctioning departures from it without lawful authority. Accordingly the
first essential step is to ascertain what is prohibited by s.3(4) British Museum Act
1963.
38.
Second, s.3(4) applies to “objects vested in the Trustees as part of the collections of
the Museum”. There is no doubt that, given the basis on which this application is
made, each of the four drawings is such an object. It is, of course, possible that in
other proceedings the heirs of Dr Feldmann may establish title to the drawings with
the consequence that they will never have been “part of the collections of the
Museum”. In that event s.3(4) will not preclude a disposition by the Trustees in their
favour. This conclusion leads to two further propositions.
39.
Third, the compromise of a claim by the heirs of Dr Feldmann to be entitled to the
drawings does not involve any breach of s.3(4). A bona fide compromise of the
issues of fact involved in the claim is as binding as the decision of the Court to that
effect, see Binder v Alachouzos [1972] 2 QB 151. It may involve a recognition that
the drawings have never been part of the collections. In that event they have never
been subject to the prohibition contained in s.3(4). For this reason I reject the
argument which suggests that the power to compromise is somehow an unexpressed
exception to s.3(4). It is not an exception but the consequence of the limited
application of s.3(4) only to objects which are part of the collections.
40.
Fourth, for similar reasons I reject the argument that as moral considerations may be
relevant to an exercise of the power to compromise they may alone justify the nonobservance of s.3(4) in relation to objects which are part of the collections. They are,
alone, incapable of disapplying s.3(4) or justifying a failure to observe its terms.
41.
Fifth, it follows that any disposition by the Trustees in favour of the heirs of Dr
Feldmann can be justified, if at all, only by reference to a statutory exception to
s.3(4). It is not suggested that the drawings fall within any of the express exceptions
provided for in ss.5 or 9 of the British Museum Act 1963 or in s.6 Museums and
Galleries Act 1992. It was submitted that cases falling within the Snowden
jurisdiction constitute an implied exception. I reject that submission. The very
existence of the express exceptions negatives the recognition of further but implied
exceptions. It is true that at the time British Museum Act 1963 was before Parliament
Cross J had not decided Re Snowden. But the enactment of the Museums and