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On 14 July the Horniman Museum and Gardens, a registered charity, was announced as Art Fund Museum of the Year 2022, with the chair of judges commending the museum for having “blossomed into a truly holistic museum bringing together art, nature and its myriad collections. Its values are woven through everything it now does, with a passionate team breathing life and meaning into every object, performance, plant and animal. In many ways it’s the perfect museum.”

As all charity trustees should know, their fundamental duty is to act in the best interests of their charity’s purposes, which in the case of the museum are, essentially, to advance education for the public benefit by acquiring, housing, exhibiting, documenting, conserving, restoring and repairing objects and collections of an educational nature, particularly those relating to the study of ethnography, natural history and musical instruments.

However, this week it has been reported than rather than exhibiting and conserving objects, the museum’s trustees have agreed – with the blessing of the Charity Commission – to return ownership of a looted collection of treasured artefacts to Nigeria, including its Benin Bronzes, because it is the 'moral and appropriate' thing to do.

How can it be that the commission has sanctioned the return of part of the museum’s collection to Nigeria, instead of their continued exhibition in South London?

A concise answer was provided by the judge in a recent court decision involving the investment powers of charity trustees Charity trustees' powers of investment: Does the Butler-Sloss decision change the law? (shoosmiths.co.uk):

“The boundaries of law and morality are sometimes difficult to define and perhaps even more so in the context of charities, which are often underpinned by a strong sense of moral imperative. But decisions by trustees have to be legally justifiable. In the case of charities, s.106 of the Charities Act 2011 requires charity trustees to obtain the approval of the Charity Commission, the Attorney General or the High Court when they 'regard themselves as being under a moral obligation' to make a payment or refuse a gift. In other words, acting pursuant to what the trustees perceive to be a 'moral obligation' will be carefully supervised.”

So, perhaps contrary to popular belief, charity trustees cannot just 'do the right thing' but have to act in accordance with the law, in particular to further their charity’s purposes.

But where it could be fairly said that if the charity were an individual it would be morally wrong of them to refuse to make the payment, where the trustees are not under any legal obligation to make the payment; and where they cannot justify the payment as being in the interests of their charity, then they can apply to the commission which may authorise them to make any application of property of the charity, or to waive to any extent, on behalf of the charity, its entitlement to receive any property.

Ex gratia orders are most often associated with ex gratia payments by charities to individuals who have not benefited under a testator’s last will, say in circumstances where the benefactor’s last will left a legacy or the residuary estate to a charity, but it is accepted by all that he was on his way to his solicitor’s office to change his will to benefit that individual when he was unfortunately run over by a bus.

However, this case shows that the ex gratia regime is not limited to payments.

And it is being revised this autumn, following the coming into force of provisions in the Charities Act 2022 which will enable charity trustees to delegate their decision making in respect of ex gratia applications to others within their charity and will allow charities to process requests for ‘small’ amounts without applying to the commission, based on factors like annual gross income and the amount of the request: Charities Act 2022: information about the changes being introduced - GOV.UK (www.gov.uk).

A postscript to 'The Case of the Benin Bronzes' (as Sir Arthur Conan-Doyle might have put it) is that talks are being held with Nigeria’s national commission for museums and monuments about the formal transfer of ownership, and the possibility of the museum retaining some objects on loan for display, research and education.

So while the Benin Bronzes are being repatriated to Nigeria there is the possibility that at least some of them may remain on display in London.