Galleries Act 1992 provided a Parliamentary opportunity to insert a further exception
if that had been thought desirable.
42.
Sixth, if the drawings are part of the collections of the Museum and there is no
express or implied exception in the British Museum Act 1963 itself it would require
some other statutory authority to justify ignoring the prohibition on dispositions.
None has been suggested in this case. There are provisions in the Charities Act 1993
whereby schemes in relation to the funds of a charity regulated by statute may be
made subject to obtaining the requisite parliamentary approval, see ss. 15(3) and 17.
Similarly there is the jurisdiction to authorise applications to Parliament described by
the Lord Chancellor in Re: Shrewsbury Grammar School (1849) 1 Mac & G 324,
333. Though such jurisdiction is rarely exercised now its existence demonstrates that
nothing less than some statutory authority is required to justify a departure from
statutory obligations imposed on trustees.
43.
Seventh, s.3(4) prohibits any disposition by the Trustees. The word “disposition” is
not defined. It is of its nature a word of wide import. The context in which it is used
does not require a restrictive interpretation; quite the reverse. I see no reason, and
none was suggested in argument, to limit its operation to acts so as to exclude
omissions. Property in goods may be passed by a failure to act as well as by an active
delivery. Consequently I consider that a failure to rely on relevant provisions of the
Limitation Acts 1939 and 1980, otherwise than on legal advice, in order to effect a
transfer of the drawings to the heirs of Dr Feldmann is as prohibited by s.3(4) as is a
delivery by the Trustees. I did not understand the Trustees in the oral argument of
their counsel to contend otherwise.
44.
Eighth, the cases in which the Court has altered the trusts or other provisions of a
charity regulated by statute, namely, Re:Shipwrecked Fishermen and Mariners’
Royal Benevolent Society [1959] Ch.220 and Re Royal Society’s Charitable
Trusts [1956] 1 Ch. 87, depend on the proposition that the conferment of a limited
power did not in those cases give rise to an implied prohibition against any action
outside that limit. The proposition may or may not have been justified in the
particular case but that can have no effect on a case such as this when the statutory
provision plainly imposes a prohibition and the extent of the prohibition is clear.
45.
For all these reasons I conclude that no moral obligation can justify a disposition by
the Trustees of an object forming part of the collections of the Museum in breach of
s.3(4). There is nothing in the decision of Cross J in Re Snowden to suggest
otherwise. The fact, if it be one, that the four considerations which led Cross J to
decide that case in the way that he did apply in this case cannot justify a breach of
s.3(4). What is required is some statutory authority by way of exception. There is
none and it is beyond the power of the Attorney-General to provide one. It follows
that I reject the submission that s.3(4) only becomes relevant at the stage when the
Attorney-General decides whether or not to exercise the Snowden jurisdiction. The
existence of s.3(4) excludes any such jurisdiction in relation to acts or omissions it
prohibits.
46.
In the case of the Benevento Missal the Spoliation Advisory Panel concluded that
restitution by the Trustees of the British Library was barred by s.3(5) British Library
Act 1972 applying s.3(4) British Museum Act 1963. In paragraph 77 of the report
dated 23rd March 2005 (2005 HC 406) the panel under the chairmanship of the Rt
Hon Sir David Hirst recommended to the Secretary of State that legislation should be
introduced to amend the British Museum Act 1963, The British Library Act 1972 and
the Museums and Galleries Act 1992 so as to permit restitution of cultural objects of
which possession was lost during the Nazi era (1933-1945). The panel also