Mark Stephens on new UK anti-seizure law: “The actions of the British government and the Royal Academy are morally reprehensible”

A lawyer’s comment on the RA's 'From Russia' exhibition and the laws that were pushed through to protect it

It is trite law that a common thief does not obtain ownership of stolen goods. And it is no different when the thieves are the Bolsheviks of the February 1917 Revolution.

The Royal Academy’s “From Russia” Exhibition is showing looted art. In international law “looted” is anything stolen, i.e. anything not bought and sold by a willing buyer and seller. It is for this reason that our Culture Secretary, James Purnell, has bounced into law with unseemly haste, the so called, “immunity from seizure” legislation or Part 6 of the Tribunals, Courts and Enforcement Act 2007, which came into force early, on 31 December 2007.

The speed of this implementation is almost unprecedented other than in a period of National Emergency—consultation on the details of the legislation only concluded on 21 December. The inescapable conclusion of this timescale is that the legislation was (wrongly) prepared in advance of concluding the consultation.

The original malefactors did not take good title to the pictures, leaving the legitimate owners (and now) their heirs every good right to claim back what should have been legitimately theirs all along. That basic right to have stolen cultural property returned is embodied as a modern cultural and civilised norm by treaties and declarations uttered by the likes of Unesco and Unidroit. It is also a right recognised in international law.

Against this international standard, Russian law prevents reclamation of looted art in Government hands—and post 1917 pretty much anything worth having was in Government possession; not that they owned much of it legitimately. The 1917 proclivity for spoliation later became something of a Russian national pastime—particularly at the end of World War II. The Russians happily looted and pillaged the collected cultural spoils of Nazi Germany—both artefacts looted by the Nazis but also, and all too often overlooked, the contents of pre-War German museums and cultural institutions.

This means that the only opportunity to recover looted works of art is when they travel abroad.

The Russians could have lawfully “nationalised” the cultural objects taken at the time of the 1917 Revolution. The difference between the thieving state and legitimate compulsory purchase is not a fine one. The state must pay compensation to anyone it takes assets from—a bit like the compulsory purchase powers exercised every day by so many local authorities in the UK. The absence of a compensation payment makes the acquisitions by Russia illegal in international law as well as UK law.

It is clear then why the Russians are so very nervous about sending abroad stolen goods. It is very much less clear, why the British government and the Royal Academy should be content knowingly to receive looted goods and then set about preventing the true owners from recovering them.

The actions of both the British government and the Royal Academy are morally reprehensible and put them both in fundamental breach of the domestic and international standards, to which they apparently only pay lip-service.

This legislation has much wider ramifications as it will also apply to future exhibitions, including, for example, loans from abroad of Nazi Holocaust looted art if they are borrowed without any indication that they might have been spoliated. Put plainly, this legislation fundamentally undermines the commitments of the British government and our National institutions to right past wrongs.

However, the owners of this art may yet have the last laugh. Since October 2000 the government has been obliged only to bring in legislation which complies with the Human Rights Act. Article 6 of the European Convention on Human Rights—part of our domestic law—assures all citizens the right to their property free from state interference. The Russian State has in its hands stolen goods (shortly to be “fenced” to the Royal Academy for a short period); the British government is aiding and abetting that wrong with this legislation.

The Courts are empowered both to review legislation for compatibility with the rights granted by the European Convention and also to admit claims for breaches of the property rights assured by the Convention.

Our government’s actions in passing this legislation render it susceptible to a Declaration of Incompatibility by the English Courts. Courts which are thankfully still more interested in seeing justice done than bending in the Russian breeze; courts which are also keener to see property rights properly assured than give their imprimatur to state sponsored theft.

A just outcome of this diplomatic farrago is—and should be—that the British government is saddled with legislation struck down by its own courts, proving an acute embarrassment in front of the very Russian tsars who insisted on first receiving British legislative assurances before permitting their stolen art to leave Russia. If the legislative assurances prove worthless it will result in the looted works being returned to their rightful owners. Ah—justice at last…

The writer has practised art and cultural property law for 27 years; he also operated the first English law firm to open for business in Moscow under the Soviet regime.

Originally appeared in The Art Newspaper as 'Mark Stephens: “The actions of the British government and the Royal Academy are morally reprehensible”'

Appeared in The Art Newspaper Archive, 188 February 2008