Research and analysis

Research report: export licensing and provenance

Published 3 June 2025

Authored by the Institute of Art and Law and Tennant McQuillan LLP.

9 May 2025

Disclaimer notice- although this report was commissioned by DCMS, the findings and recommendations contained within are those of the authors and do not necessarily represent the views of the DCMS.

Executive summary

This report sets out the results of the research conducted to investigate how provenance of cultural objects is addressed in the UK’s export licensing system. The legal framework for the export of cultural objects does not mention provenance, however provenance is referred to frequently in notices, procedure and guidance issued by Arts Council England, which manages the export system. Under EU law, there was a legal basis to investigate the ‘legal status’ of an object upon export, but this no longer pertains in the UK after Brexit (apart from in Northern Ireland). [see sections 1 to 3.1]

The legal grounds for requesting provenance appear to be:

• (1) to prove that the object was imported into the UK less than 50 years ago,
• (2) to assess the object under the Waverley criteria [see section 1.3] and
• (3) to ensure that the export would not violate UK law in relation to dealing offences pertaining to cultural objects [see section 3.2].

The sort of evidence required of exporters should therefore relate to these legal grounds, with special consideration for archaeological objects [see sections 4.1.1 and 4.1.3]. While it would be unrealistic to demand full provenance from exporters, they must nevertheless undertake due diligence in order to provide provenance information which is relevant to the above assessment. Gaps in provenance are a normal feature in object histories and such gaps should not be counted against exporters, provided they have undertaken due diligence. For this reason, it is recommended that exporters sign a due diligence declaration [see sections 4.1 to 4.3].

When cases are referred to the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest, only in rare circumstances would missing provenance preclude an assessment under Waverley. Should there be suspicions that the export might violate UK law, the relevant authorities can be alerted. Museums should be encouraged to acquire objects under the current system and may still be able to make an ethical decision to acquire where gaps in provenance persist. In rare cases where the Reviewing Committee might require independent provenance advice, the Secretary of State could nominate a provenance specialist to support the Committee [see section 4.4].

Inconsistencies and a lack of clarity relating to provenance were found across the different procedures, notices and guidance intended to support exporters through the process. These should be harmonised to clarify and streamline the system; this approach should be reflected in the Statutory Guidance. No amendment to primary or secondary legislation is required [see section 4.5].

The report considers the approach to provenance in export licensing in 13 other countries, as well as the EU. Two perspectives inform a country’s consideration of provenance information in export licensing: to evaluate whether the applicant’s cultural object is of national importance or significance; and/or to assess whether such object may be stolen, looted, or of illegal origin, in contravention of local laws. As in the UK, legislation is rarely the source of any provenance inquiry, but practice suggests an increasing interest in investigating provenance at the point of export [see section 5].

Definitions

As used in this report, the following terms or acronyms denote the meanings or descriptions set out below:

ACE: Arts Council England.

Annex A Declaration: means the declaration from an applicant set out in the form called ‘Annex A’ (more fully titled ‘Information required by the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest in order to consider cases’).

cultural object: means, according to Schedule 1 of the Export of Objects of Cultural Interest (Control) Order 2003, any object of cultural interest manufactured or produced more than 50 years before the date of exportation (except postage stamps and other articles of philatelic interest; birth, marriage or death certificates or other documents relating to the personal affairs of the exporter or the spouse of the exporter; letters or other writings written by or to the exporter or the spouse of the exporter; and goods exported by, and being the personal property of, the manufacturer or producer thereof, or the spouse, widow or widower of that person).

Deferral Process: means the process by which an export of a cultural object may be deferred to allow a UK entity to acquire the object. due diligence: means making every endeavour to establish the relevant provenance as is reasonable and proportional to the nature of the object, its value, age and rarity, the exporter and any trade associations they may belong to, and the circumstances of the particular case.

due diligence declaration: means the declaration it is proposed an applicant for export might make as described in section 4.3 of this report.

EA: means an Expert Adviser appointed to advise on an object submitted for export in accordance with the Statutory Guidance (see section 2.1).

ICOM Code: means the Code of Ethics for museums published by the International Council of Museums from time to time, the current iteration being from 2017.

ITAP: means the Ministerial Advisory Panel on the Illicit Trade (often referred to as ITAP) established in 2000 and ceasing operations by 2005.

ITT 104255 (Provenance Research): means Invitation to Tender (ITT) for Contract For Services 104255 (Provenance Research) dated 11 November 2024.

KLTR: means the King’s and Lord Treasurer’s Remembrancer, the Crown representative in Scotland dealing with ownerless property, including Scottish treasure (Treasure Trove Unit).

Matching Offer Procedure: means the process by which UK entities can make a matching offer to acquire the object from the exporter and save it for the nation.

Option Agreement: means the agreement by which an exporter promises to sell the object to a UK entity at the fair market price.

PAS: means the Portable Antiquities Scheme.

provenance: means, generally, the history and ownership of an object from its discovery or creation to the present. When used in the context of archaeological finds, the term tends to mean findspot.

RCEWA: means the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest, a non-Departmental public body which advises the Secretary of State for the Department for Culture, Media and Sport (DCMS) whether a cultural object intended for export is a national treasure.

The Museums Association Code: means the Code of Ethics published by the UK Museums Association from time to time, the current iteration being from 2015.

Waverley criteria: (1) close connection with history and national life; (2) outstanding aesthetic importance, and (3) outstanding significance for the study of a particular branch of art, learning or history, such that the object’s departure would be a misfortune.

1. Introduction

1.1 Scope of projects

This report sets out the results of the research conducted by the Institute of Art and Law in conjunction with Tennant McQuillan LLP between December 2024 and March 2025 in response to DCMS ITT 104255 (Provenance Research).

The scope of the project was to investigate how the provenance of cultural objects is addressed in the UK’s export licensing system. The overall goal was to develop understanding about the issues involved and to help identify potential options for improvements to the current system.

The key questions which the research addressed were:

• What sort of evidence of provenance is or might be required for different types of objects and in different circumstances?
• What are the reasons for applicants not providing evidence of lawful provenance with their export licence applications?
• What is or might be reasonable to expect applicants to provide for different types of objects and in different circumstances?
• How and to what extent do other countries take account of provenance issues in export licensing?

1.2 Project team and methodology

The research was conducted by Alexander Herman (Director, Institute of Art and Law), Anastasia Tennant (Partner, Tennant McQuillan LLP), Emily Gould (Assistant Director, Institute of Art and Law) and Ephraim Tan (Research Assistant, Institute of Art and Law). Jo Crabtree (Office Manager, Institute of Art and Law) provided liaison and administrative support.

The research team worked collaboratively in executing the methodology which comprised the following:

• Desk-based research to examine legislation, regulations, guidance materials, parliamentary records and other relevant documentation pertaining to the export licensing system for cultural objects in the UK.
• Desk-based research to examine legislation, regulations, guidance materials and other relevant documentation pertaining to export licensing systems for cultural objects in 13 other countries plus the European Union.
• Face-to-face semi-structured interviews with key stakeholders representing 19 organisations from the commercial art market, art market trade bodies, public sector organisations and academia.
• Questionnaire surveys (14 in total) with (i) experts in overseas jurisdictions and (ii) art market, trade body and public sector respondents. (See Annex for a full list of consultees.)
• Analysis of results of the above investigations and drafting of the report. Responses from consultees were anonymised in the report.

Responses from consultees were anonymised in the report.

1.3 The principal challenges

The export licensing system for cultural objects currently in place in the UK was established in response to the report of the Waverley Committee in 1952.

This system established the criteria against which applications are still assessed today, being:

• (1) close connection with history and national life;
• (2) outstanding aesthetic importance, and
• (3) outstanding significance for the study of a particular branch of art, learning or history, such that the departure would be a misfortune.

Since 1952, the cultural sector has experienced fundamental changes which have impacted directly on the movement of cultural objects between countries and the attention paid to the provenance of such objects. International agreements have been enacted aimed at combatting the trade in illicit cultural objects^{[footnote 1]} and the popularity of metal detecting in the UK has increased significantly, resulting in a vast increase in archaeological finds.^{[footnote 2]} Alongside these developments, codes of ethics have been established for transacting in cultural objects in the UK and beyond, which require exacting standards of due diligence within the trade, and even more so, for public institutions.^{[footnote 3]}

All these factors combined have created a double bind on the export authorities: having to process very large numbers of applications every year with the added pressure of trying to take into account additional considerations about the provenance of such objects.

The export licensing system faces three particular challenges in this regard, relating to:

• (1) Objects imported into the UK less than 50 years ago. These objects are not normally considered under Waverley, so import proof sufficient to identify them as belonging to this category needs to be presented to ACE.
• (2) Objects being assessed under the Waverley criteria. Assessment under Waverley can be difficult when all or parts of the provenance are missing or unknown.
• (3) UK-source archaeological material. These objects account for very large numbers of objects coming through the export system ^{[footnote 4]} and without information about the findspot, are difficult to assess as regards whether (i) the object derives from the UK (e.g. Roman-era material) (ii) its export would violate UK law or (iii) it satisfies the Waverley criteria.

2. The existing legislative and policy framework for the export of cultural objects

Export licensing for the export of cultural objects from the UK is a statutory function carried out on a UK-wide basis by ACE under delegated authority from the Secretary of State for Culture, Media and Sport.

The UK export licensing system is designed and intended primarily to identify potential UK ‘national treasures’ and provide an opportunity to prevent their permanent export and retain them in the UK for public benefit, balancing the opportunity to retain UK national treasures with the rights of owners to move and dispose of their property as they wish. In so doing, it aims to support the UK’s world class art market and expand opportunities for public access to cultural treasures in UK museums and galleries.

2.1 General legal framework for the export of cultural objects

The UK legislation that governs the export of cultural objects is the Export Control Act 2002 along with the Export of Objects of Cultural Interest (Control) Order 2003. The Control Order provides that a licence is required for all ‘objects of cultural interest’ manufactured or produced more than 50 years before the date of exportation, with certain limited exceptions (i.e. postage stamps, personal papers and goods manufactured by the exporter).

Section 9 of the 2002 Act requires the Secretary of State to provide guidance about the exercise of their functions under the Control Order and these are set out in the Statutory Guidance (the latest iteration of which dates from December 2020) (see below).

Until the UK’s withdrawal from the European Union, the UK’s export system for cultural objects was impacted by EU regulations, most notably Council Regulation (EC) No 116/2009 (which required export authorities in Member States, when processing export applications, to ensure that the relevant goods had not been unlawfully removed from the territory of another Member State after 1 January 1993)^{[footnote 5]} and EU Implementing Regulation No 1081/2012 (which allowed Member State export authorities to require documentation from exporters ensuring the ‘legal status’ of objects being exported).^{[footnote 6]} These Regulations no longer apply in the UK, apart from in Northern Ireland under the terms of the Windsor Framework.

Statutory guidance

The Statutory Guidance provides for and/or explains:

• a series of ‘Open Licences’ to ensure efficient operation of the system (paras 2 to 8)
• the Waverley Criteria (para 12)
• the role of the EA and the RCEWA (paras 13 to 20)
• the long-standing policy whereby normally only objects that have been in the UK more than 50 years are referred to EAs for Waverley assessment (with proof of import (paras 10,38))
• the rule requiring documentary proof that the export of objects dispatched from an EU Member State on or after 1 January 1993 was lawful and definitive (paras 39 to 40);^{[footnote 7]} and
• the Deferral Process, providing at Annex I, the Option Agreement (paras 18 to 32)

2.2 Procedures for exporters

The Procedures for Exporters published from time to time by ACE does not have any legal bearing but sets out the detailed procedure for the operation of the system. In case of any conflict with the Statutory Guidance, the latter is stated to prevail (para 1).

2.3 Notices and guidance

In addition to the above, there are a number of notices and guidance documents for exporters of cultural objects issued by ACE. These include:

• ‘Notice on the provision of Import Proof, Declarations and Provenance’ (2024): relating to the assessment as to whether an object entered the UK less than 50 years ago.
• ‘Notice on Confidentiality’ (2024): assuring exporters that information will be kept confidential.
• ‘Notice to Exporters – Cultural Objects from Iraq’ (2022): relating to the provisions of the Iraq (Sanctions) (EU Exit) Regulations 2020, prohibiting dealing in cultural property illegally removed from Iraq after 6 August 1990.
• ‘Notice to Exporters – Cultural Objects from Syria’ (2022): relating to the provisions of the Syria (United Nations Sanctions) (Cultural Property) (EU Exit) Regulations 2020, prohibiting dealing in cultural property illegally removed from Syria after 15 March 2011.
• ‘Guidance for Exporters of Archaeological Objects’ (2022): relating only to archaeological finds from the UK.

2.4 System manuals

Five ‘System Manuals’ accompany the new online export application portal giving advice to exporters on completion of the relevant online forms.

3. Provenance

3.1 What the law and policy documents currently say about provenance

3.1.1 Export Control Act 2002 and Export of Objects of Cultural Interest (Control) Order 2003

Neither the Act nor the Control Order mention provenance. The Control Order does, however, provide (at section 4) that it is a criminal offence for any person to either knowingly or recklessly make a statement or furnish any document or information for the purposes of obtaining an export licence which is false in a material particular, punishable by fine or imprisonment up to 2 years, or both.

3.1.2 The Statutory Guidance

As noted above, this requires documentary proof that the export of objects dispatched from an EU Member State on or after 1 January 1993 was lawful and definitive (paras 39 to 40). It also sets out in the Option Agreement at Annex 1 (by which an exporter promises to sell the object to a UK entity at the fair market price) a provenance warranty at clauses 9.1.6 and 9.1.7. There is no other reference to ‘provenance’ or ‘due diligence’ in the body of the Statutory Guidance.

3.1.3 ACE procedures for exporters

This provides that export application forms ‘must give details of the full provenance and ownership history of the object’ (para 9, emphasis in original). Then, in reference to the Waverley criteria, it asks the exporter to ‘provide detailed contextual information and all known provenance, including any catalogue entries’ (para 12). If the object has been in the UK less than 50 years, then the evidence ‘must provide details of the provenance and legal status of the object’, either the commercial shipping documentation or else ‘provenance dating back as far as possible or, in the case of material from Iraq, to 1 August 1990’ (para 13).

3.1.4 Notices and guidance

The ‘Notice on the provision of Import Proof, Declarations and Provenance’ (2024) asks prospective exporters of objects that entered the UK less than 50 years ago to supply the ‘import paperwork to prove’ the object was not in the UK for the last 50 years. If the object is not from an EU source, it asks for ‘all available paperwork’ detailing from where the object has been imported into the UK and on what date it arrived. If no proof of import is available exporters can provide a signed declaration instead. It states that exporters:

should also provide details of all known provenance and any export licences issued from the object’s country of origin as we need to be sure that it is lawfully located in the UK

For objects that have been in the UK more than 50 years (and are therefore being referred to an EA), the notice states that it is:

crucial that full provenance information is provided. The export licence application form requires the applicant to give all known provenance and published references with the full description[…] In addition to this information being required its provision aids an adviser in their consideration and is particularly pertinent when considering the first Waverley criterion, as an object may (by association with an important person, location, event, or a collection which is of great historical significance) be of national importance.

The ‘Notices to Exporters on Cultural Objects from Iraq and Syria’ both require exporters to provide ‘as much information as possible’ about the object in order to ‘rule out the possibility’ that it is cultural property illegally removed from Iraq after 6 August 1990, or from Syria after 15 March 2011 respectively.

The ‘Guidance for Exporters of Archaeological Objects’ requests exporters seeking to export a UK archaeological find (though states that this is ‘not mandatory’) to provide:

• findspot
• historical period
• type
• subtype
• composition
• total number of items
• value
• measurements
• PAS number (or relevant number for coins)
• treasure reference number
• high resolution images

‘System Manual 5’ (Export Licensing Online: Instructions for Exporters, published June 2024) states that for goods which have been in the UK for the past 50 years:

we require all known provenance (ownership history). If the goods were acquired from a dealer or an auction house who doesn’t want to give this information to you, you should ask them to send it to us directly and in confidence.

The Guidance for EAs asks the EA to ‘provide details of the item’s provenance’ in its statement to the RCEWA.

3.1.5 Annex A, as required for submissions to the RCEWA

When applications are submitted to the RCEWA, the applicant must complete a form called ‘Annex A’. It asks for:

all known details of the provenance of the cultural object, including details of previous owners and locations, giving dates where known… also exhibition history and bibliography.

This form includes the following declaration:

I confirm that all the requested information available in connection with this case has been provided and that, to the best of my knowledge, the information provided in this form is correct.

The form also requires that the applicant (if not the owner) has made the owner aware of the contents and attachments and that he/she is content with the responses.

3.1.6 Granted export licence

A granted export licence states that the licence:

does not guarantee the value or authenticity of the goods nor the title to them of the licence holder or owner stated hereon.

3.1.7 EU Law (no longer applicable in the UK, apart from Northern Ireland)

Council Regulation (EC) No 116/2009 requires proof that relevant goods have not been unlawfully removed from the territory of another Member State after 1 January 1993.

EU Implementing Regulation No 1081/2012 refers to the relevant authorities ensuring the ‘legal status’ of objects being exported.

3.2 Grounds for requesting provenance in the current system

The legal bases for inquiring into the provenance of a cultural object from an exporter under the current regime are as follows:

3.2.1 Proof of entry into UK within the last 50 years

An exporter claiming that an object has entered the UK in the last 50 years needs to provide the import proof to substantiate such a claim, such that the application can be dealt with by ACE in accordance with the long-standing ‘50 year’ policy set out in the Statutory Guidance (see section 2.1 above).

As noted above, there is a basis under the EU-UK TCA (and in the Statutory Guidance) for ACE to seek evidence to ensure that cultural objects have not been unlawfully removed from the territory of an EU Member State after 1 January 1993, and checks of this nature have continued to be made by ACE post Brexit. The broader grounds to seek evidence of the ‘legal status’ of objects being exported no longer exists following revocation of the relevant EU Implementing Regulation (see section 2.1 and footnotes 5 and 6).

3.2.2 Assessment under Waverley

Provenance information is required from exporters in order to meet the purpose of the export system in assessing objects in accordance with the Waverley criteria (as per Statutory Guidance, para 12).

3.2.3 Ensuring export does not violate UK law or UK’s international legal commitments

Exporters and owners are subject to specific UK laws that render it illegal to export particular categories of cultural objects.

These prohibitions are found within the following ‘dealing’ offences set out in specific legislation reflecting the UK’s international legal commitments (‘dealing’ in each case includes ‘exporting’):

• Dealing in a ‘tainted’ cultural object unlawfully excavated or removed from a building (and forming part of that building) or monument in the UK or abroad after 30 December 2003: Dealing in Cultural Objects (Offences) Act 2003 (s 1)^{[footnote 8]}.
• Dealing in cultural property unlawfully exported from an occupied territory and imported into the UK after 12 December 2017: Cultural Property (Armed Conflicts) Act 2017 (s 17).^{[footnote 9]}
• Dealing in Iraqi cultural property illegally removed from Iraq after 6 August 1990: Iraq (Sanctions) (EU Exit) Regulations 2020. (art 22)^{[footnote 10]}
• Dealing in Syrian cultural property illegally removed from Syria after 15 March 2011: Syria (United Nations Sanctions) (Cultural Property) (EU Exit) Regulations 2020 (art 11(c)).^{[footnote 11]}

3.3 Understanding the history of the debate

The consideration of how provenance should be addressed in the context of export licensing has a long history, focusing on two particular areas:

• (i) the international trade in illicit cultural objects and
• (ii) UK archaeological finds.

3.3.1 Provenance and the international trade in illicit cultural objects

For many years, official bodies have expressed concern about unprovenanced foreign cultural objects being given UK export licences. This relates principally to the problem of the illicit trade in cultural property and whether the export licensing system has a role to play in trying to stem such a trade.

Examples include:

• 1991 to 1992: comments by the RCEWA in its Annual Report about the ‘wholly unacceptable’ practice where UK export licences for objects (mostly antiquities) ‘which, quite possibly, have been illegally exported from their country of origin’ were being ‘unjustifiably used as evidence that the objects in question were legitimately on the market in the first place’ (38th Report, para 18).

• 1993 to 1994: the RCEWA noting ‘considerable anxiety about the trade in unprovenanced objects which often encourages criminal activities’ (40th Report, para 23).

• 2000: consideration of the issue by the House of Commons Select Committee for Culture, Media and Sport in its Seventh Report, Cultural Property: Return and Illicit Trade (paras 97 to 102). Evidence was presented by two esteemed academics in the field (Colin Renfrew and Neil Brodie) on the risk that the export system was being used to ‘launder’ unprovenanced antiquities (para 101), but ultimately no changes were recommended (para 102).

• 2000: recommendation from ITAP that special checks be carried out by the export licensing authorities as to whether foreign objects had been imported from an EU Member State (as required under EU law)^{[footnote 12]} or from any other country to verify provenance to ensure objects had not been illicitly removed from their countries of origin^{[footnote 13]} (paras 4, 80). The ITAP also recommended a sub-committee of the RCEWA to assist in such investigations, and special funding to facilitate the process (paras 4, 79 to 82).

• 2003: recommendation in the Quinquennial Review of the RCEWA that ‘adequate information about the history and provenance of a work should be provided when an application for an export licence is made and that the UK export licence application form should also include a reminder that it is an offence to give false statements for the purposes of applying for a licence’ (para 6.11.6). In its response, the DCMS noted this recommendation and accepted a further recommendation that it should be made clear to applicants ‘that they may be required to make a formal declaration to the RCEWA that they have provided all relevant provenance information known to them’.^{[footnote 14]}

• 2022 to 2023: note of concern from the current RCEWA Chair Andrew Hochhauser KC in the RCEWA Annual Report that the RCEWA might be used to ‘confer legitimacy to the trade in objects that may have been illegally exported from another country’ (p.8). The Chair recommended that, where EAs have reasonable grounds to suspect a violation of UK law, reasonable steps should be taken to demonstrate that the possession of or trade in the object is lawful. In their preface to the Report, the Ministers expressed their agreement with the Chair that ‘every effort is made to establish the full provenance of items before items are referred to expert advisers’ (p.5).

• 2023 to 2024: suggestion by the Chair in the 2023 to 2024 Annual Report that the ITAP be reconvened and that the RCEWA would like to see the establishment of a provenance sub-committee to assist in its deliberations (p.9).

3.3.2 Provenance and UK archaeological finds

The exponential increase in metal detecting has raised concerns about archaeological finds with little or no provenance (which might potentially be Waverley-assessable) being exported. This was noted as early as 1987 to 1988 when the RCEWA expressed concerns about (i) the failure to record/disclose findspots for such material and (ii) the withholding of provenance information from applications.^{[footnote 15]}

In a recent example, the RCEWA noted that incomplete provenance information regarding a set of Iron Age Gold Brooches limited the ability to consider Waverley 1, as ‘provenance was essential to determine the brooches’ connection to national life’. After an initial three-month deferral period, no serious intention to purchase the brooches was received so an export licence was issued.^{[footnote 16]}

3.4 The practical reality: what consultees told us about provision of provenance

3.4.1 Summary of responses

There was considerable disagreement amongst respondents as to what amount of provenance can and should be required from an applicant seeking to export a cultural object from the UK. As has been noted, whilst the UK legislation itself fails to spell out what, or indeed, whether provenance must be submitted with an application, the procedures, notices and guidance issued by ACE over the years indicate that exporters are expected to provide significant amounts of provenance information: this is referred to as ‘full provenance and ownership history’ in the ‘Procedures for Exporters’ (para 9) and ‘all known provenance’ in ‘System Manual 5’.

Respondents representing trade bodies believed that asking for ‘full’ provenance went too far, (some also objected to ‘all known provenance’), because such standards appeared to them unrelated to the task of assessing objects under the Waverley criteria. While these respondents accepted that “relevant information” could be sought to prove that an object had been imported to the UK less than 50 years ago, anything beyond this appeared to them akin to ‘mission creep’, a broad control on exports grafted onto a system established only to protect national treasures.

3.4.2 Specific issues around provenance information on which consultees expressed views

Ensuring registration of portable antiquities finds

There was a suggestion that export applicants could be encouraged to register non-treasure finds with the PAS scheme, then provide PAS details in their export application so that information about such finds could be gathered (given that PAS registrations are purely voluntary).

Facilitating acquisition by UK entities

A concern was expressed that missing provenance might render a cultural object incapable of acquisition by a museum, owing to the exacting due diligence and provenance standards required of public institutions.

Risk of exporting spoliated cultural objects

The consideration by the RCEWA in 2017 of the case of a Meissen figure from a collection known to have been the subject of Nazi spoliation caused considerable concern. In the absence of a matching offer, the work was exported.^{[footnote 17]}

Application withdrawals

Concerns were raised by ACE that, in certain cases, once ACE has flagged a need for further provenance from an applicant or notified them of an objection, that applicant promptly withdrew the application. This often occurred with the same applicant.

4. Recommendations

Based on the research undertaken for this project, the consultations and the completed questionnaires, the following explains the recommendations of the research team. These have been structured around the questions originally set by DCMS in the ITT 104255 (Provenance Research).

4.1 What sort of evidence of provenance is or might be required for different types of objects and in different circumstances

Requiring complete provenance for all exported objects is not realistic and, in certain cases, may not be reasonably linked to the purpose of the export control. In order to ensure the appropriate and efficient functioning of the export licensing system, the evidence of provenance required of an applicant should relate to the following categories, each of which stems from the legal bases set out in section 3.2 above:

4.1.1 Objects imported into the UK less than 50 years ago

(A) Proof of import

Proof of import is currently being checked by ACE. As set out in the Import Proof, Declarations and Provenance notice, this proof may consist of ‘import paperwork’. It should be made clear what such paperwork could comprise in order to plausibly demonstrate that the object had not been in the UK for more than the past 50 years.

• Supporting documentation could include: customs declaration and supporting statements, shipping invoice; export licence from a foreign country; publication, inventory or invoice indicating that the object had been in a foreign collection within the last 50 years; photographic evidence showing the object in situ in a foreign location.
• If the documentation does not sufficiently demonstrate the object’s import within the last 50 years, the exporter must sign a ‘due diligence declaration’, similar to what is currently set out in the Annexes to ‘Import Proof, Declarations and Provenance’ (see 4.3 below).

(B) Foreign archaeological objects

For foreign archaeological objects that entered the UK less than 50 years ago, provenance information should be sought to ensure the export does not violate UK law, by establishing that the object:

• was not excavated or removed from a building (having formed part of that building) or monument unlawfully after 30 December 2003
• did not come from an occupied territory and entered the UK after 12 December 2017.
• was not illegally exported from Iraq after 6 August 1990
• was not illegally exported from Syria after 15 March 2011
• Supporting documentation can include: excavation permit or export licence demonstrating that the object left before the relevant date and/or left lawfully; publication, inventory or invoice indicating that the object had been out of its country of origin before the relevant date.
• If the documentation does not sufficiently demonstrate the lawfulness of the UK export, the exporter must sign a due diligence declaration (see section 4.3 below).

(C) Cultural objects originating from the EU

For objects that left an EU Member State after 1 January 1993, provenance information should show that the object was lawfully exported from that Member State.

• Supporting documentation can include: an export licence from the relevant EU Member State and/or evidence demonstrating that the object had left that state before 1 January 1993 or did not require an export licence from that state.
• If the documentation does not sufficiently demonstrate the object’s lawful and definitive dispatch after 1 January 1993, the exporter is asked to rectify the position and liaise with the relevant Member State (ACE can only issue a licence for the object to go back to that Member State). If the position cannot be rectified a licence is refused and we understand that there has been such a case recently.

4.1.2 Objects being assessed under the Waverley criteria

For objects that have been in, or are presumed to have been in, the UK for more than 50 years, then specific provenance to allow for a proper assessment under the Waverley criteria should be provided by exporters. This would include:

• Waverley 1: Any documentation demonstrating a close connection with a particular British historical figure or collection, a particular part of the country or a particular period in British history.
• Waverley 3: Any documentation demonstrating geographic origin or past use of an object that could be of outstanding significance for scholarship.

4.1.3 UK-source archaeological objects

For UK-source archaeological objects, additional provenance can be sought both to ensure that the export of the object would not violate UK law (see section 3.2 above) and to enable assessment under the Waverley criteria.

• Supporting documentation can include the following, as already requested under the ‘Guidance for Exporters of Archaeological Objects’: the findspot, historical period, type, subtype, composition, number of items, value, measurements, reference numbers from PAS or EMC/CCI for coins, or a treasure reference number (if relevant).^{[footnote 18]} While the guidance makes clear that such provision is ‘not mandatory’, it can nevertheless ensure there are no legal risks associated with the export. It might also be useful to add to the list evidence of landowner permission or other legal ownership (e.g. through inheritance). Exporters must be reminded that false statements can constitute an offence under s 4 of the Export Control Order 2003.^{[footnote 19]}
• If documentation is incomplete, the exporter must sign a ‘due diligence declaration’ (see section 4.3 below).

If, after enquiring into the provenance, there are strong suspicions that the export or statements made by the exporter might violate UK law, contact should be made with law enforcement, while informing DCMS, or, in the case of treasure or Treasure Trove, the relevant coroner (if known) or the KLTR in Scotland.^{[footnote 20]} If there continue to be suspicions, the Secretary of State might consider not granting the licence.

4.2 What are the reasons for applicants not providing evidence of lawful provenance with their export licence applications

As was made clear by a number of respondents from the art trade, full provenance is non-existent or unavailable for a great number of objects being exported. This is often because it was only relatively recently that provenance became a consideration for the trade or acquisition of cultural objects. Objects may have been traded or exported from a foreign country perfectly lawfully many years ago, but the invoice, bill of sale or export licence was not retained. It would therefore be inappropriate to assume that all, or even most objects without complete provenance are in some way illicit. The term ‘lawful provenance’ in the question itself was challenged by certain respondents: according to them it implies that full provenance is necessarily linked with legality, when the two are often quite remote.

There was an assumption at the beginning of the research that art market professionals may be withholding certain provenance information due to a concern that the information would not be kept confidential by the export licensing authorities. Having queried this point with a number of professionals and their trade bodies, this does not seem to be a meaningful concern and most are satisfied that information they provide to ACE is kept confidential. ACE has published the useful ‘Notice on the duty of confidentiality’, which provides certain assurances in this respect, which seem to be acknowledged and appreciated by the trade.

4.3 What is or might be reasonable to expect applicants to provide for different types of objects and in different circumstances

In cases where there is a gap in documented provenance, exporters must confirm that they have undertaken their due diligence, providing whatever relevant documentation they have been able to find, and attesting that they are unaware of any other evidence relevant to the inquiry. The level of due diligence expected of an exporter should be reasonable and proportional to the nature of the object, its value, age and rarity, the exporter and any trade associations they may belong to, and the circumstances of the particular case.

Exporters should therefore be required to sign a ‘due diligence declaration’ to account for gaps in the relevant provenance set out above. A suggested form of that declaration is set out below. Unless there are clear suspicions that the export or the declaration might violate UK law, the declaration will enable ACE to process applications more efficiently, allowing the process to function smoothly and avoiding the current blockages around provenance. We note that there are useful template declarations in the’ Import Proof, Declarations and Provenance’ notice, but these relate only to proof of import within 50 years, and in the Annex A Declaration, but this relates only to objects being submitted to the RCEWA. The ‘due diligence declaration’ should be required for all export applications.

Due diligence declaration

‘I declare that I have conducted due diligence into the above, have provided the relevant provenance information I have been able to find and am not aware of any other relevant provenance information. To the best of my knowledge, the object(s) the subject of this application:

• was/were not unlawfully excavated or removed from a building (of which it/they formed part) or monument after 30 December 2003
• did not originate from an occupied territory and enter the UK after 12 December 2017
• was/were not illegally exported from Iraq after 6 August 1990
• was/were not illegally exported from Syria after 15 March 2011
• has/have not been stolen

[Signature]

This declaration is made by (select one):

• (i) the owner of the object
• (ii) the agent of the owner, having notified the owner of the contents of this declaration and acting with the legal authority to sign on the owner’s behalf.

Declarants are reminded that making a statement knowingly or recklessly that is false in a material particular constitutes an offence under section 4 of the Export Control Order 2003, punishable by fine and/or imprisonment of up to two years.’

It is important that the declaration binds the owner. In situations where the applicant is not the owner (e.g. a dealer, auction house or shipping agent), the declaration needs to make clear that the declarant has notified the owner of the contents of the declaration and has obtained the owner’s permission to sign as the owner’s agent. We heard from law enforcement that unless the owner is bound, it can be difficult to enforce even when there has been a false declaration (e.g. by a shipping agent).

4.4 Provenance before RCEWA

We were told of situations where gaps in provenance have proved challenging for the EA and the RCEWA. This can relate to situations where the EA or RCEWA have difficulty assessing the object under Waverley or where, despite meeting Waverley, the gaps in provenance trigger questions around the legal or ethical status of the object such that it may be difficult to conceive of a museum being capable of acquiring the object.

We will consider these each in turn:

• 1) Problems assessing Waverley

Gaps in provenance would not normally preclude a Waverley assessment. The only problem might occur if an object that would not otherwise meet any of the Waverley criteria might conceivably meet Waverley 1 or 3 should more provenance be found. The trouble with relying too much on this hypothetical is that it could lead to endless provenance research. In most cases, the due diligence declaration above, and in the case of the RCEWA the Annex A Declaration, should suffice. In rare circumstances where the EA or RCEWA remain concerned that an object would otherwise be lost to the nation, Waverley 3 could conceivably be met if the nature of the object is such that, despite gaps in provenance, it would still have outstanding significance for scholarship.

• 2) Legal status of the object

As recommended above, should there be any suspicion from the EA or the RCEWA as to the object’s export violating UK law, this should be filtered through ACE to law enforcement, keeping DCMS informed. Because the EA and RCEWA will not normally assess objects imported into the UK less than 50 years ago, the concern relates mostly to UK-source archaeological objects.

• 3) Ethical status of the object

There have been occasional situations where gaps in provenance have triggered ethical questions around the acquisition of such objects by UK museums. It should be noted that, for an application to proceed to the RCEWA, the exporter will have already provided provenance and signed the Annex A Declaration.

In cases where a museum shows a serious expression of interest to acquire an object during the first deferral period, the exporter will be required to sign the Option Agreement which includes a provenance warranty: this warranty specifically requires the exporter/seller to guarantee that full due diligence has been undertaken as to the provenance of the object.^{[footnote 21]} It will hopefully assuage a UK entity demonstrating an expression of interest in acquiring the object and would appear to satisfy the ethical requirements for such a purchase as well.^{[footnote 22]}

Ethical questions have also arisen where there is evidence of confiscation or a forced sale during the Nazi period in Europe (1933 to 1945) (see 3.4.2 and footnote 17 above). While the export or acquisition by a UK entity is not necessarily unlawful, it would be incongruous with the UK’s commitments under the Washington Conference Principles 1998^{[footnote 23]} and, for a museum, the NMDC statement Spoliation of Works of Art During the Holocaust and World War II Period (1998, latest update 2021). In such rare situations it may be conceivable for the Secretary of State to use her discretion to refuse the export.

The Chair of the RCEWA explained to us the RCEWA’s suggestion that a sub-committee be established to investigate provenance of objects prior to their referral to the RCEWA in future (a similar recommendation had been made by ITAP in 2000).

Having given full consideration to the Chair’s suggestion, and appreciating the challenges the RCEWA faces around provenance, the research team has certain reservations about such an approach, not least because it could result in lengthy and uncertain pursuits for further provenance information with no clear endpoint. This could add to, rather than ease, the problem of delays in the current system. Instead, we would recommend that, as an absolute last resort in rare cases, the RCEWA recommend to the Secretary of State that independent advice be sought from a provenance specialist. A specialist could then be chosen based on particular expertise from a list to be established and updated from time to time by ACE (similar to the system for independent valuers that support the Secretary of State when valuation is at issue).

4.5 Necessary changes

The requirement for provenance details as described above should be made clear to the exporter and easy to comply with through the new electronic portal established by ACE. The type of provenance documentation requested should be made clear in specific input boxes on the online portal. At present, provenance is requested in a general and unspecified form (i.e. ‘full provenance’ or ‘all known provenance’): the process appears unclear for exporters and challenging ACE case workers. Incorporating the more targeted provenance inquiry above would help clarify and streamline the system, allowing applications to be dealt with quickly and effectively.

Additionally, the above structure of inquiry should be consistent across all relevant export guidance notes and notices, and ideally should be set out in the Statutory Guidance presented by DCMS to Parliament at the next occasion. This would help to make the system clear and harmonious. The changes suggested would not require any amendment of primary or secondary legislation.

5. Country comparisons

This section addresses the overarching question of how and to what extent other countries take account of provenance issues in export licensing. Thirteen countries plus the EU were surveyed, with responses obtained from experts / export office representatives in nine countries – namely, Australia, Belgium, Denmark, France, Germany, Italy, the Netherlands, Spain, and Switzerland. Where country respondents have not provided input, evaluation is based on desk-based research to examine relevant publicly available (and translated) legislation, regulations, guidance materials and other relevant documentation pertaining to export licensing systems for cultural objects. The findings are set out below.

On a high level, two perspectives inform a country’s consideration of provenance information in the export licensing context:

• (1) to evaluate whether the applicant’s cultural object is of national importance / significance; and/or
• (2) to assess whether the would-be export may be stolen, looted, or of illegal origin, in contravention of local laws.

As in the UK, legislation protecting cultural heritage in most countries does not set out requirements concerning an applicant’s provision of provenance information. Denmark and Belgium are notable exceptions – with the former’s laws expressly mandating that:

‘[a]n application for an export permit must contain a detailed description of the object and its origin’,^{[footnote 24]} and the latter’s laws stipulating that

‘[an] application shall contain the information set forth in…the forms imposed [and] shall also contain the necessary information on the origin and ownership history of the work’.^{[footnote 25]}

In most cases, again, like the UK, requirements on the nature / type of information about cultural objects are contained in secondary / procedural regulations and/or export licensing forms. Australia, China, Germany, France, Italy, the Netherlands and Spain are examples in this respect.

For EU countries, these requirements flow from EU Council Regulation 116/2009, which requires a would-be export from an EU country to be lawfully and definitively located within the relevant EU country on 1 January 1993 (see above at 3.1.7). Moreover, EU Commission Implementing Regulation 1081/2012 allows export authorities to require documentation from exporters ensuring the ‘legal status’ of objects being exported and sets out a model standard license, requiring the applicant to:

[g]ive any other information on formal aspects that could be useful for identification, for example historical antecedents, conditions of execution, former owners, state of preservation and restoration, bibliography, electronic code or marking.^{[footnote 26]}

Because of this, EU countries generally have export licensing requirements which pertain to the applicant providing some level of provenance information. Prior to its withdrawal, the UK had such a legal basis as well to inquire into the ‘legal status’ of the exported object. Switzerland, which is also not part of the EU, does not legally require the provision of provenance information for an export license application.^{[footnote 27]}

For the USA, there is no export licensing system for cultural objects, so there is no method of checking the provenance of objects upon export, unless this is undertaken by law enforcement on the basis that an object may be suspected of being stolen.

5.1 Nature and type of provenance information

The touchstone amongst the country respondents appears to be the applicant’s provision of available documents and evidence concerning the ownership and history of the cultural object. Such information is furnished to enable the relevant authority to assess whether the cultural object is of national importance / significance, and/or whether the cultural object may be on the market illegally.

In this respect, the approach amongst most countries is not dissimilar, although the level of requested provenance information/detail may vary (slightly.)

For instance:

• Australia requires applicants to provide ‘details of the history and provenance of the object within [their] knowledge’, and the online form illustrates this as ‘details of the object’s provenance and who may have owned the object before you or its association with a significant Australian person, place, activity, business or event’.^{[footnote 28]} That is so the Australian export office can make a national importance/significance assessment on the would-be export.

• The German e-application system contains a mandatory provenance field, with a drop-down where the applicant may:
  • (a) upload proof of provenance;
  • (b) submit written information on provenance; or
  • (c) declare that the applicant has ‘no information on provenance’.

There is a short guidance statement to applicants that provenance ‘documents the origin of the object’, and includes [documents on] every change[] of ownership, possession and location of an object known to the applicant and/or owner from its creation to the present, such as:

receipts for the purchase or other acquisition, purchase contracts, invoices, wills, insurance certificates, extracts from auction and exhibition catalogues, or old photographs showing the work.^{[footnote 29]}

• The Danish e-application system, for exports within the EU, contains a mandatory provenance field requiring the applicant’s provision of the object’s ‘General Description and Provenance’. The Danish export office’s website states that for exports ‘[o]utside EU you will have to fill out a paper application form’ which will be sent upon request – and the Danish respondent confirmed that the Danish export office may in the relevant case:

request that the owner provide [them] with [provenance] information (if known) [including] creator/origins, date, dimensions, material and other characteristics pertaining to the provenance.^{[footnote 30]}

• The French respondent indicated that:

[t]here is no obligation (yet) in [French] national legislation to provide the elements/documents to prove provenance but [the French export office] tr[ies] to obtain it anyway.

In this respect, the applicable form for a French Export Certificate (N. 02 0075) appears to require the applicant to provide, amongst others, ‘reference documents [including] bibliography, catalogue, inventory’, ‘historical background [including] place of origin, destination, former ownership, passages at public auction / in a collection etc.’, and whether the application is made in the capacity as owner of the object or agent.^{[footnote 31]}

Countries like Belgium, the Netherlands, Spain, and Italy appear to impose stricter requirements on the provision of provenance information to assess whether the object may be tainted by illegality. The reasons for these stricter requirements is unclear, since the overall regimes for the protection of cultural objects in these countries varies quite considerably.

• The Belgian respondent indicated that applicants are required to submit ‘[a] document explaining the provenance [referring to the origin and ownership history] of the cultural object, going back to at least the date of entry into force of the EU [Commission Regulation 752/93 on 1 April 1993]’^{[footnote 32]} as well as ‘documents (such as purchase bills, deeds etc.) proving the ownership of the current owner’.

• The Dutch respondent indicated that:

[i]n general, the applicant has to provide as much information on the history and former owners of the objects as possible. Provenance information will be considered together with other information like value of the objects, legal owner and country of origin and is checked against for example databases of stolen works of art, databases of protected national treasures and export licences from other countries.

The provenance information should be:

sufficient to assess whether there are indications that the item concerned is illegally on the market i.e., because it has been stolen or illegally exported, or may be a national treasure.^{[footnote 33]}

• The Spanish respondent indicated that the Spanish export office ‘requires the exporter to prove the ownership [and] legal origin of the cultural object’, and ‘if there are no documents proving the legal provenance of archaeological object[s] in particular, the export license will not be issued’.

• The Italian respondent indicated that provenance information concerning ‘previous ownership/historical collections’ is mandatory, but other ‘non mandatory documents’ like ‘historical-artistic information, general catalogue number…bibliography, other characteristics’ may be requested by the Italian export office ‘depending on the specific case’. Additionally, there is also a legal obligation for the exporter to provide any certificates of authenticity and provenance – and in their absence, the exporter’s declaration ‘containing all available information on the authenticity or probable attribution and provenance’.^{[footnote 34]}

5.2 Incomplete/lacking provenance information

All country respondents reflected a trend of general compliance where applicants would seek to provide relevant provenance information where it is known and available. For instance, the Danish respondent reflected that their export office had a trust-based relationship with applicants, in addition to a ‘strong working relationship’ with customs and law enforcement. The Australian respondent also stated that there are criminal sanctions under Australian law (not unlike UK law) concerning the giving of false or misleading information, which may deter applicants from giving false provenance information.^{[footnote 35]}

Respondents from Belgium and France reflected that cases of incomplete/lacking provenance information tend to relate to cases where, by reason of confidentiality/privacy concerns, the current owner is unable to obtain relevant provenance information from the previous owner or is unable to disclose information concerning the previous owner.

Relatedly, respondents from Australia, Germany, and Netherlands reflected that their export officers may conduct their own provenance research, with references to external sources of information (including with relevant art loss registries, Interpol etc.), especially in cases where there may be grounds to suspect an object’s legal origin. Conversely, in France and Spain, an applicant in such a scenario may find their export licensing application being turned down by the relevant export office.^{[footnote 36]}

In the context of the EU, the 2022 Report on the Implementation of the EU Export Regulation observed that one of the grounds on which export license applications were rejected by Member States, was where the ‘applicant refused or otherwise failed to provide the requested licit provenance information’.^{[footnote 37]}

Most country respondents reflected that there are no legal requirements (under their local laws) for applicants to specifically check all relevant and accessible databases on stolen works of art (e.g., the Interpol Stolen Art database; ICOM Red Lists; etc.) before making their export license application. Although, some countries like Belgium, France and Italy informally encourage the practice of checking relevant art loss databases amongst applicants seeking to export cultural objects.

Other countries like China, Germany, the Netherlands and Switzerland legislate due diligence obligations (including investigations on provenance and record-keeping) for art market professionals, which seek to guard against the risk of objects being stolen, looted, or being of illegal origin. For instance, in Switzerland, while there are no requirements to submit provenance information during the export licensing application process, other provenance safeguards exist where any party exporting (or importing) a cultural object is required to submit a customs declaration, amongst others, that the object is not stolen, looted or lost against the owner’s will.^{[footnote 38]}

Additionally, Swiss art market professionals must, for a period of 30 years:

keep written records on the acquisition of cultural property and in particular the origin [i.e., provenance] of the cultural property, insofar as it is known, and the name and the address of the supplier or seller, a description and the purchase price of the cultural property.^{[footnote 39]}

In the Netherlands, the obligation on due diligence (including to consult relevant registers on stolen works of art) is taken up under Dutch law.^{[footnote 40]}

The Swiss and Danish respondents also indicated that coordination between the export office, customs and law enforcement, may additionally buttress against the risk of the transit of stolen, looted, or illegal objects from their countries. In Switzerland, an importer or exporter of any cultural property must make a customs declaration which includes:

• (a) ‘the object type of the cultural property’, and
• (b) ‘as detailed a description as possible of the place of manufacture or, for the results of archaeological or palaeontological excavations or discoveries, the place where the cultural property was found’.^{[footnote 41]}

Any non-compliant declaration, or any unlawful import or export (including objects ‘stolen or lost against the owner’s will’) may result in a custodial sentence not exceeding one year or a fine under Swiss law.^{[footnote 42]}

5.3 Provenance requirements for different types of cultural objects

The general trend appears to be the requirement to populate standard export licensing application forms, where the provenance of the object is one of several fields for submission. The provenance field does not appear to vary in relation to a different type of object. Respondents from Belgium, France, Italy, Denmark and Spain reflected that identical provenance information is requested for different types of objects. The French respondent indicated that for EU export licenses (for cultural objects exiting the EU), there is a ‘common set of checks for all cultural goods’, where applicants must provide, amongst others, the relevant customs documentation if the goods were previously imported into the EU, invoices/auction slips etc. to support the value of goods, and any other documentation that allows the object’s transit / trajectory to be determined.

However, the German and Dutch respondents indicated that a nuanced and fact-sensitive approach may need to be taken in obtaining provenance information in relation to a specific object. The Dutch respondent reflected, in particular, that:

[f]or unique objects like…paintings or drawings provenance material is more extensive and easier to provide than for reproduced objects like coins, applied arts and books.

Summary of recommendations

1. Evidence of provenance required of an applicant should relate specifically to:

• objects imported into the UK less than 50 years ago (establishing date of entry within 50 years, no violation of UK law and no unlawful export from EU Member State after 1 January 1993)
• objects being assessed under the Waverley criteria (where relevant to assess Waverley 1 or 3)
• UK-source archaeological objects (to establish no violation of UK law) [see section 4.1]

1. Strong suspicions that the export or statements made by the exporter might violate UK law should trigger notification to law enforcement, keeping DCMS informed (and the consideration by the Secretary of State to not grant the licence). [see section 4.1]

2. In the absence of appropriate documented provenance, exporters must confirm their due diligence in a signed due diligence declaration (which also binds the owner). [see section 4.3]

3. For items presented for consideration to the RCEWA, the due diligence declaration should be used in conjunction with the Annex A Declaration and the Option Agreement, providing, in most instances, an ethical basis on which a museum acquisition may proceed. [see section 4.4]

4. Evidence of spoliation during the Nazi era in Europe (1933 to 1945) might trigger consideration by the Secretary of State to withhold a licence (in keeping with the UK’s international commitment to the Washington Principles). [see section 4.4]

5. In the exceptional case that the absence of provenance of the type listed above in (1)  precludes the RCEWA from making an assessment the Secretary of State could appoint a provenance specialist to assist in this regard. [see section 4.4]

6. Current guidance and notices should be clarified and updated to facilitate the process for exporters and case workers alike. [see section 4.5]

Acknowledgements

The research team would like to acknowledge the time and assistance generously given by all those consulted in responding to our enquiries. Additional thanks go to Andrew Hochhauser, Charlotte Woodhead, Charlotte Joy, Hugh Johnson-Gilbert, Richard Barnett, Giuseppe Calabi, Jacques Schuhmacher, Ruth Redmond-Cooper, Gerry McQuillan and Wendy Philips.

Annex- list of consultees

Interviews were conducted with:

• Arts Council England
• British Art Market Federation (Tom Christopherson and Anthony Browne)
• British Museum (Jill Cook, Sue Brunning, Naomi Speakman, Sophia Adams, Rachel King and Dean Baylis)
• Charlotte Woodhead, University of Warwick
• Costas Paraskevaides, ArtAncient and Chair of the International Association of Dealers in Ancient Art
• DCMS Cultural Property team officials
• James Ratcliffe, Art Loss Register
• Joanna van der Lande, Bonhams consultant and Chair of the Antiquities Dealers’ Association
• Judith Nugée, consultant with Hornsby + Nugée Ltd
• King’s and Lord Treasurer’s Remembrancer (KLTR) Treasure Trove Unit, Scotland
• Leslie Webster, formerly British Museum and RCEWA
• Marian Campbell, formerly V&A
• Mark Dodgson, Chair of the British Antiques Dealers Association
• Martin Wilson, CEO Phillips
• Michael Lewis, Head of PAS at British Museum
• Paul Hewitt, Chair of Society of London Art Dealers
• RCEWA (Andrew Hochhauser KC, Tim Pestell, Mark Hallett)
• DC Sophie Hayes, Metropolitan Police
• Sotheby’s (Julian Washington, Felix Hale)

Questionnaires were completed by respondents in the following countries:

• Australia
• Belgium
• Denmark
• France
• Germany
• Italy
• Netherlands
• Spain
• Switzerland

Questionnaires were completed by the following art market and museum respondents:

• Sam Fogg, dealer
• Daniel Crouch and Deborah Coltham, Antiquarian Booksellers’ Association
• Ruth Cornett, Christie’s
• Alexander Hallett, Sworders
• Fraser Hunter, National Museum of Scotland

1. Important examples are: International conventions such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (accepted by the UK in 2002) and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols dated 1954 and 1999 (ratified/acceded to by the UK and implemented into national law through the Cultural Property (Armed Conflicts) Act 2017); agreed international principles such as the Washington Conference Principles 1998 addressing the issue of art spoliated during the Holocaust era (1933 to 45) and their implementation at a national level (in the UK, through establishment of the Spoliation Advisory Panel in 2000). ↩

2. In 2023 PAS reported a record high of 74,506 finds recorded by the public, a sharp increase from the previous year’s report (53,490), 95% of which were found by people metal-detecting. It was made clear during the consultation that ‘metal detecting holidays’ and rallies, after which finds are brought overseas often with little consideration of the UK’s export licensing system, are cause for concern. ↩

3. UK Museums Association Code, ICOM Code, DCMS 2005 guidance ‘Combating Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material’. ↩

4. This is because all UK-source archaeological finds over 50 years of age require an individual export licence to leave the UK whatever their value. 300 licence applications were submitted in respect of 23,658 finds in 2024 (according to PAS records). By way of comparison, the 2023-24 export licensing numbers covered roughly 35,000 objects in total (see DCMS, Objects of Cultural Interest Annual Report 2023 to 2024, p 5). ↩

5. Following Brexit, the Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the European Union and the European Atomic Energy Community, of the other part, 2020 (EU-UK TCA) requires cooperation in the return of cultural goods unlawfully removed after 1 January 1993 (Part 2, Title 1, Article 36). The principle was included in the most recent statutory guidance (December 2020). ↩

6. This regulation was revoked by the UK in 2021. The principle has not been retained. ↩

7. See note 5 above. ↩

8. Supplementing international commitments under the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Articles 3, 7(b) and 13(a), in conjunction with the UK’s declaration). ↩

9. Reflecting international commitments under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols. ↩

10. Reflecting international commitments under UN Security Council Resolution 1483 (2003). ↩

11. Reflecting international commitments under UN Security Council Resolution 2199 (2015). ↩

12. See note 5 above. ↩

13. The ITAP recommendation to check provenance for non-EU derived material was investigated, but was not taken forward due to a conflict with EU law at the time (see comments of the then Minister for the Arts, Estelle Morris, 26 May 2004 Hansard HoC Column 480WH). ↩

14. See DCMS, ‘Response to the Quinquennial Review of the Reviewing Committee on the Export of Works of Art’ (2005), p 6. Note that such a declaration is now included in the Annex A Declaration, required if the case is referred to the RCEWA. ↩

15. 34th Annual Report of the RCEWA (1987 to 1988), para 20. ↩

16. 69th Annual Report of the RCEWA (2023 to 2024), Case 13, Iron Age Gold Brooches. ↩

17. Meissen figure of ‘Pulcinell’ (Case 2, 2015-16). See Woodhead, ‘Tarnished Treasures: Provenance and the UK’s Waverley Criteria’ Santander Art and Culture Law Review 2/2019 (5): 109 to 134. ↩

18. For Scottish finds, a disclaimer from the Treasure Trove Unit of the KLTR should be included in addition. ↩

19. In relation to metal detecting holidays or rallies, referred to in note 2, awareness of the export system might usefully be raised amongst organisers (and the public more widely, through public notices at airports and ports) in order to encourage exporters to apply for licences and provide relevant provenance information, especially findspots. ↩

20. Notification to Border Force might also be made if an applicant has suspiciously withdrawn applications after provenance was requested, in order to alert them to the risk of the objects being exported illicitly. ↩

21. Clauses 9.1.6 and 9.1.7. In accordance with paragraph 32 of the Statutory Guidance, if the seller is not able to give the warranties required in the Option Agreement an export licence will normally be refused. ↩

22. See the 2005 DCMS guidance: Combating Illicit Trade: Due diligence guidelines for museums, libraries and archives on collecting and borrowing cultural material at pp 10 to 11 regarding an affidavit to account for provenance gaps for major items, and at p 17 for museums of last resort for items originating in the UK. ↩

23. In addition to the Washington Conference Principles on Nazi-Confiscated Art (1998), the UK is a signatory to the Terezin Declaration (2009) and the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art (2024). ↩

24. Executive Order on the Act on the Protection of Cultural Property in Denmark and on Supplementary Provisions to the Regulation on the Import and Export of Cultural Objects, s.6(1). ↩

25. Belgium (Flemish Community Decree of January 24, 2003 (TOPSTUKKENDECREET), Art. 48/1 ↩

26. Explanatory Notes [2] Box 17 ↩

27. Information provided by Swiss respondent. ↩

28. Information provided by Australian respondent and Australian Government, Department of Infrastructure, Transport, Regional Development, Communication and the Arts, ‘Export Permit Applications’. ↩

29. Kulturgutschutz Deutschland Ausfuhrgenehmigung and information provided by German respondent. ↩

30. Danish Cultural Heritage Committee, Application Form, The Danish Commission on the Export of Cultural Assets and information provided by Danish consultee. ↩

31. Entreprendre.Service-Public.fr ‘Demande de certificate d’export pour un bien culturel (Formulaire 02-0075), under ‘Identification du demandeur’. ↩

32. Belgian Response, No. 2. See also EU Commission Regulation 752/93, Art.11. ↩

33. Information provided by Dutch respondent. ↩

34. See Italian Code of Cultural Goods (2004), Art. 64(1) ↩

35. No information is available on how frequently such criminal sanctions have been imposed. ↩

36. Information provided by French and Spanish respondents. ↩

37. Reported from the Commission to the European Parliament, The Council and the European Economic and Social Committee on the Implementation of Council Regulation (EC) No 116/2009, dated 26 August 2022, [4.8]. ↩

38. Information provided by Swiss respondent. See also Swiss Cultural Property Transfer Act (2003) [CPTA], Art. 4a and Art. 24. ↩

39. CPTA, Art.16(2)(c). ↩

40. Dutch Civil Code Book 3, Art. 87a. ↩

41. CPTA, Art 4a, and related Order, Art. 25(1)(a) and 25(1)(b) ↩

42. CPTA, Art. 24(1) ↩