March 2009's news:
Nicki Fox and Mark Caldon
Immunity from Seizure
It has been a few months since the Immunity from Seizure legislation came into force and we thought that it might be helpful to let you have some information, which, we hope, will help those of you in the process of completing an application.
Please direct any enquiries about immunity from seizure to Mark Caldon
Tel: 020 7211 6158.
Best practice guidance
Since the commencement of the Tribunals, Courts and Enforcement Act 2007 (TCE Act) 9 museums have been approved by the Secretary of State - for full details see the website
Much of the material produced has been of a high standard and, with the agreement of the institutions concerned, we would like to act as a conduit to enable institutions in the process of applying to have sight of some of the material produced by museums which have been approved. In providing this information we would like to point out that:
1) it is for each institution in its own particular circumstances to decide the best procedures to establish for obtaining approval; and
2) it is for each institution to decide (with their own legal advice) the best approach to ensure continuing compliance with the published guidance and the regulations.
As stated at the Seminar in June 2008 and in information circulated following the seminar, we would encourage applications to be submitted at the earliest opportunity. This is particularly important where you have an exhibition coming up and where protection has been requested by the lender. Applications need to be considered by independent consultants and then by the Minister and we would recommend that you allow at least four weeks for your application to be dealt with.
Checklist
Under section 134 of the Act, an object is only protected from seizure if all the conditions set out in section 134(2) of the Act are met when the object enters the UK. See the checklist attach for full details of the requirements.
Application form
One approved museum submitted their application using a revised questionnaire template with an improved layout. The questions remain the same and applications on either this version or the original version will both be accepted. However, you might like to use the revised version attached if you have not already started your application.
Training materials
The Victoria and Albert Museum included in their application the materials they use for due diligence and immunity from seizure training of their staff, which in turn provide an example of the training considered to meet the criteria.
By mentioning the training materials provided by other 'approved institutions' we are not advocating one particular approach over another. The scheme is designed with fixed criteria to be met in a multitude of ways in accordance with guidance. It is appreciated that each museum will devise practices that are appropriate in the particular circumstances of that institution.
Evidence of provenance research undertaken for a recent loan and report on the due diligence checks carried out (7.5 and 7.6 on questionnaire)
Please note that the consultants look very closely at the above and, if possible, you should provide some detailed and well-researched examples. If you are unable to provide this in respect of a loan, then an example of a recent acquisition may be used instead, but only where the former is unavailable.
Website
Please ensure that the information required by the Regulations is put on the museum website at least four consecutive weeks ending on the day before the day on which the objects enter the United Kingdom. Please also provide a link of your museum website to Louise Adkin at MLA.
Provided that the required minimum information as set out in the Regulations is published, website presentation and content is a matter for the museums. Points to take into account when drafting the website page include:-
1) It is not for the approved institution to be 'deciding' whether or not an object has the benefit of 'protection' under the regime but it is for a borrower and lender to ensure that all the conditions have been met for protection to apply;
2) It will be a matter of fact in each circumstance whether or not objects (i.e. borrowers and lenders) have satisfied all the criteria for 'protection' (for the full duration of the requirements), irrespective of whether it is claimed by the institution at some stage of the publication process that an object is 'recommended' or 'eligible' on its website;
3) Approval of an institution is not an indication of protection nor is publication of the information - these are merely two of a series of criteria to be met in achieving protection as a matter of fact in each individual circumstance.
4) The requirement under the regulations is simply to publish the 'relevant information' in relation to the particular objects being brought into the UK for the relevant exhibition and, in doing so, such information can be expressed to be being published pursuant to Part 6 Tribunals, Courts and Enforcement Act 2007 and The Protection of Cultural Objects on Loan (Publication and Provision of Information) Regulations 2008.
Letter confirming a museum's approved status
Once a museum has been approved by the Minister a letter will be sent confirming the approval (this has been delegated to officials by the Minister). In the event of an overseas museums requesting a letter from the Minister, please initially explain that the Minister has delegated responsibility for writing to confirm the museum's approval to the Head of Cultural Property Unit.
If they persist please contact Mark Caldon
Nicki Fox and Mark Caldon
Cultural Property Unit
DCMS