From time to time, charity trustees find themselves in situations where they feel morally obliged to give away some of the charity’s property. It happens often with legacies – for example, you might have a situation where a person attempted to change their will but the change wasn’t legally effective, and the charity receives money that was clearly meant for someone else.
For more than 50 years, charities have had a mechanism for dealing with this. Under a 1970 case, trustees could apply to the Attorney General (in practice the Charity Commission) for permission to make a moral – or ex gratia – payment. In recent years, some charities holding cultural artefacts have used the ex gratia power to return objects on moral grounds after obtaining the commission’s consent.
In 2005, the trustees of the British Museum found themselves in precisely this sort of moral dilemma. They held four master drawings that had been stolen by the Gestapo during the Nazi occupation of Czechoslovakia. The trustees believed it was morally right to return the drawings to the heirs of their original owners and sought the Attorney General’s approval. The Attorney General referred the matter to the court.
The court held that the museum could not return them: as a statutory charity, it was governed by its own legislation, and because acts of parliament trump case law, the general ex gratia rule from 1970 did not apply. For cultural objects obtained due to events occurring during the Nazi era, specific legislation was introduced in 2009 to permit the national statutory museums to return them with the recommendation of an advisory panel and consent of the culture secretary. For all other objects in their collections, the statutory national museums still cannot return objects, including where they feel compelled by a moral imperative to do so.
Original Charities Act provision
Fast forward to 2017. The Law Commission, which was reviewing charity law, identified the position as an anomaly: ex gratia powers applied to almost all charities, but not to statutory charities. To fix this, it drafted a provision in what became the Charities Act 2022. The new section makes the ex gratia power available to statutory charities too.
The explanatory notes, which were before parliament during the bill’s passage – said the aim was “to put the matter beyond doubt”. Parliament agreed and – as is common – gave the culture secretary the power to decide when to bring the provision into force.
What happened next was curious. The government had not opposed the clause during the bill’s parliamentary stages: indeed, it was sponsoring the bill. But in 2024, it wrote to the Charity Commission announcing that it would not be bringing the provision into force for national museums and galleries.
The then-Conservative government said its policy “is that national museums and galleries should continue to be bound by their governing legislation, precluding them from resolving to restitute objects from their collections other than in the limited and specific circumstances expressly provided for in legislation”.
And in November 2025, when the current Labour government commenced the new regime, it followed a similar line – by excluding 16 statutory national museums. In effect, the government changed the law which parliament had passed. There was no parliamentary procedure, no external scrutiny, and very little public attention.
But parliament makes the laws, not the government. It is wholly inappropriate for government to adopt a “policy” of overriding parliament, changing the law by selective commencement of legislation. Worse: the courts have regularly held that an executive decision not to commence legislation is unlawful.
This is not an argument for or against the restitution or repatriation of cultural assets. Any such decision would, in any event, require the careful consideration and agreement of the trustees and then the Charity Commission. It is an argument for the rights of charities and trustees to be empowered to govern their institutions in accordance with the law in the form parliament intended.
Above all, it is an argument for constitutional due process. If the government believes the law should be different, it should use its parliamentary majority and legislate. What it cannot do is cut parliament out of the business of making laws. If the culture secretary disagrees with the law as made, she should bring forward a bill to change it – and the matter should be settled in a proper parliamentary debate.
Mark Abbott, parliamentary agent, and Erica Crump, managing partner at Bates Wells
