How should we save our 'national treasures'?

December 4 2015

Image of How should we save our 'national treasures'?

Picture: NAF

In Germany, the culture minister Monika Grütters has published draft legislation to, as she puts it, protect Germany’s cultural treasures. Specifically, she wants to extend a list of ‘national treasures’ that cannot ever be allowed to leave the country. This list includes all works in public museums, even those on loan from private owners. New regulations for what requires an export licence will also come into effect (more here). The proposals bring Germany closer to policies followed in France and Italy, and further from those here in the UK.

The result? ‘Truckloads’ of art have been leaving Germany, as owners of important artwork rush to get their pictures out of the country before the new law is passed and values go through the floor. Museum loans have been withdrawn too. The German artist Georg Baselitz withdrew all of his pictures in protest. Gerhard Richter threatened to do likewise, calling the new proposed law ‘an infringement of freedom’. 

In other words, messing around with laws to protect cultural heritage can be a dangerous business. By publishing a law to forbid the export of important privately owned works of art, the German government is making sure that soon there won’t be any left in Germany anyway.

On the one hand, this is a simple case of economics and self-preservation. Imagine you own, say, a Rembrandt that is valued at £35m on the open market. That market value is most likely dependent on international buyers, such as major Rembrandt collectors in the US, or Middle Eastern states looking to buy brand name works of art. If, suddenly, you can only sell to collectors or museums in Germany, competition for your Rembrandt is massively diminished - and thus also its value. In France, the state allows you to sell your pictures on the open market, but only in theory; as soon as any auction sale is concluded (for example) the state can automatically buy your picture for the final price, without having bid themselves. And because everybody knows this will happen, few people ever bid in the first place. 

On the other hand, however, Monika Grütters’ proposals reflect a belief that great art belongs ‘to the people’. This is a legitimate point of view, which I respect. But for me this means that the interests of those who happen to own it don’t really matter. And that I disagree with.

In Britain, we have a different system for protecting cultural treasures, because it also balances the rights of those who happen to own them. Here, owners can market their work internationally, and thus achieve the best price. (If you think that’s unfair, imagine selling your house, only for the estate agent to tell you they can’t offer it to anyone not already living in the same county.) Once someone has sold their painting, the government can grant institutions (or sometimes, in certain circumstances, other domestic private owners) a period of time to try and raise matching funds, usually about a year. If nobody can raise the money, the work of art can leave the country. Monika Grütters doesn’t like the UK system, because, she says; “the only objects that are protected are the ones that the state can afford to buy.”

This is, on the surface, to a certain extent true. But the sentence ‘the ones the state can afford to buy’ has many meanings. It can, literally, mean simply the amount of money easily available. But it also of course reflects the willingness to raise those funds. Because let us be in no doubt that states like Germany and the UK can afford, in a literal sense, to buy literally any work of art they wanted to. They are rich nations, with GDP measured in trillions of dollars. The question is, how much are politicians - or more broadly, the public - prepared to spend on a work of art, and does the cost justify the public interest. A Prime Minister, faced with a £100m bill for a new hospital or a Leonardo, will go for the hospital every time.

That, then, is the key test here; ‘the public interest’. In an article for the Art Fund’s quarterly magazine, the Art Fund director Stephen Deuchar, places great emphasis on the public interest, or at least his definition of it. Deuchar wants to see “radical improvements to the UK’s art export control mechanisms […] real action and reform, without further obfuscation or delay”. He writes after the recent controversy over the sale of a £35m Rembrandt portrait of Catrina Hooghsaet (above) from Penrhyn Castle in Wales. The Art Fund was ready to launch a campaign to raise £22.5m to buy the picture (the remainder would have come from the government, in the form of tax foregone). The appeal showed great ambition, and the Art Fund must be applauded for giving it a go. But in the event, the campaign had to be halted at the last minute, because the new owner decided he wanted to keep the picture in the UK, and see off any risk that the Art Fund (or, in effect, the nation) might forcibly buy his picture from him against his wishes. 

The Art Fund, understandably disappointed at not having the chance to buy the picture, hinted that they alone were acting in ‘the wider public interest’. They also made some hyperbolic statements about the Rembrandt being under immediate and perilous threat - when actually it will stay in the country (I think for at least a decade) and will be lent to a public museum (for more on this, see here). Hence we are now seeing Deuchar’s call for change.

Deuchar shares Monika Grütters view that the UK system is no good, writing: “The UK’s Export Review system – both looser in the controls it exercises and more cumbersome in the machinery it employs than systems employed elsewhere in Europe and beyond – has been unable to guarantee its central task (to stop national treasures going abroad) for some time.”

Is he right? I’m not sure many things we can truly define as ‘a national treasure’ have been lost over, say, the last five years. This is not to say that many extremely significant pictures have not gone overseas, which under current criteria were rightly declared 'national treasures'. And which I would dearly loved to have seen in a UK gallery. I mean instead in the wider sense of pictures which the nation itself, as whole, would have really felt the loss of.

The Rosebery Turners were certainly a great loss, but they are well looked after in the Getty, and we do already have the Turner bequest at the Tate, as well as many other fine Turners in public collections (thanks mainly to the artist himself). I'm sorry if this sounds a reductionist argument, but it's valid. Then there was a £50m Picasso, ‘Child with a Dove’; expensive, yes, but was there national grieving over its departure? Would the public really have stomached raising £50m for the picture, of which a huge part must have been public money? I doubt it. One could say the same about the £25m Raphael drawing from Chatsworth; undoubtedly a jewel, but our national conscience was not pricked by its departure.

Instead, it seems to me that where there are pictures which truly do stimulate the interest of the wider public, like the £100m Titian ‘Dianas’, or the £10m Van Dyck Self-portrait, we are perfectly able to raise even gargantuan sums to save them. And well done the Art Fund for doing so. Indeed, the whole process of raising such sums, though laborious and painful, is a useful indicator of whether the works in question should be ‘saved’. Just because an overseas buyer values something more highly than we do, doesn’t mean we must ‘save it’ - and so stop some other nation from enjoying it. Must we buy everything?

Second, let’s look first at Deuchar’s definition of ‘the public interest’. He seems to assume that the public interest test is purely whether a picture goes on public display. But as any judge will tell you, a public interest test must involve a far broader consideration than that. Is it, for example, in the wider public interest that we only step in to buy expensive pictures that happen to have been in the UK for a long time? Was it in the public interest, on this occasion, for £12.5m of tax to be foregone by the Treasury, in order to buy a picture that not everybody thought was as ‘mesmerising’ as Deuchar did? (The pot of tax available for such transactions is limited, so other works of art available to buy might have been lost.) Is it in the public interest to undermine the UK’s internationally dominant position in the art trade (on which, more below), which creates thousands of jobs, and millions in tax revenue? Finally, is it in the public interest for the state to have the power to compel you to sell something against your wishes, even if it’s art?

For here I suspect that when Deuchar mentions approvingly other ‘European’ export systems, and calls for ‘radical reform’ of the UK system, he has in mind the ability for the government to forcibly block the export of works of art deemed ‘national treasures’. I may be wrong, and if so, then he has my apologies.

But how would such a policy work in practice? Moves to tighten up the export of cultural objects to a level that might satisfy the Art Fund would, in effect, require the part nationalisation of privately held assets, and simply because someone has deemed them to be of ‘national importance’. In other words, if now we are to draw up some German-style list of national treasures, or introduce a French system of pre-emption, we immediately deny the owners of those works the right to realise the full value of their assets. Is that fair? And can it in fact be done without first causing a mass exodus of national treasures?

And who would decide what should be saved? A grand committee? The Art Fund? The Art Fund thought the Rembrandt a national treasure worth spending £35m of public and charitable money on. Plenty of other people did not. One leading UK museum director told me the picture had a ‘good face and wimple, but [is] not a great Rembrandt. The Rembrandts at Chatsworth, Drumlanrig and Mulgrave are so much better - wait for those?” 

And let us look at the curious rationale on which the Art Fund partly based his decision to try and ‘save’ the Rembrandt:

Putting this great picture to such a powerful social purpose across Wales would, it must be said, also have provided a positive postscript to another, more controversial side to Penrhyn’s past. Not only had the family’s wealth originally derived from sugar and the slave trade, but their suppression of union activity and then strikes at the Penrhyn slate works in 1900-3 lies among the darkest chapters of Welsh industrial history. To this day many local people refuse to enter the castle by way of quiet retaliation. For all these reasons, the prospect of a sale by the Penrhyn trustees to the Art Fund, on behalf of the National Museum of Wales and the Welsh people more widely, rather than to a private overseas buyer, promised to be a welcome and potentially popular outcome.

Should a ‘powerful social purpose’, and writing a historic wrong, be a reason for deeming something a national treasure? I’m not sure.

And, yes, the art trade. Aha, you say - “this Grosvenor fellow is an art dealer. He just wants to be able to flog as many pricey pictures as he can, for as much as he can. Those fat commissions!” Well, if that’s what you want to think, so be it. Actually, I’m more concerned with old-fashioned notions of private property. We like these notions in Britain, hence Magna Carta.  Certainly, I think the UK’s traditional success as an international centre for the art trade is worth protecting. That does depend, to a certain extent, on being seen as a country where the rights of the owners of art are in some way protected. You need to be sure, if you move here with a picture, or merely send it for sale, that the state isn’t going to say ‘we’ll have that thanks’. It may be a nebulous concept, but it is around such fundamental certainties that generations of expertise coalesce over centuries and have helped create Britain’s dominant position in the art trade.

I don’t think Deuchar likes the art trade though. Here are the last two paragraphs of his Art Quarterly piece, which I quote in full:

Though we may regret the actions of many players in this saga, we should not be surprised by them. The UK’s Export Review system – both looser in the controls it exercises and more cumbersome in the machinery it employs than systems employed elsewhere in Europe and beyond – has been unable to guarantee its central task (to stop national treasures going abroad) for some time. Its rules and procedures have been developed over the years under the close scrutiny and lobbying of the British art trade, which has always wished to ensure as much freedom as possible to sell works of art abroad. Much is made – both by those who run and those who participate in the system – of the ‘gentlemanly’ procedures and etiquette that determine how business is conducted. Declarations are made by applicants on the basis of their word rather than through any legal contract, and in the majority of instances, it is true, the system’s many loopholes are not excessively exploited and abused. But in the growing roll call of recent occasions on which an applicant has been economical with the truth about some aspect of a sale, or gone back on their word, or acted in a way that has casually overridden the public interest – as in the case of the Rembrandt – notably large sums of money have been involved. With £35m at stake, gentlemanly conduct will forever be in short supply.

Human behaviour will not change, so the systems that regulate it must change instead. The Art Fund has been lobbying for many years for radical improvements to the UK’s art export control mechanisms. As a consequence of their weakness, the permanent loss to Wales and the UK of the Penrhyn Rembrandt may now look almost inevitable, but we appeal to the Treasury, the Department for Culture, Media & Sport and the Arts Council and all those who support and run the present and outdated systems, to respond to this terrible lesson by committing to real action and reform, without further obfuscation or delay.

I suppose some people are incapable of gentlemanly behaviour because they’re blinded by money. But actually, Deuchar has a lot of people in his sights here, not just dealers like me. He seems to mistrust, perhaps simply as naive, those who devised and run the current ‘cumbersome’ and ‘outdated’ export procedures. And he seems to believe we must be saved from ourselves by more regulation. 

But I think Deuchar is being a little unfair. I have some experience of export cases, both as an applicant and as an expert adviser, and though there are often snags, those who operate the system are unfailingly efficient, professional and selfless. Many of them, such as those who make up the export committee, are volunteers. Others work under great pressure with few resources. Nor have I seen much evidence of the sort of dodgy behaviour Deuchar seems to have seen. This is not to say it doesn’t happen - I've been in committee meetins where I've found myself arguing for lower valuations for example. But I would simply say that elements of the art world are prone to gossip, some of it malicious, and I wouldn’t believe everything you hear. Perhaps I have misread him, but Deuchar seems to start with a deep suspicion of the art trade. 

That said, I have great respect for Deuchar, who is a man of significant experience and undoubted decency. I can certainly agree with him that there is room for improvement in the export licence system. For example, the way licence applications are initially judged, by a single ‘expert assessor’ (usually a museum curator) can sometimes be a little arbitrary. It’s perhaps a matter of regret that pictures like the Charles Le Brun portrait of Everhard Jabach and his family was not taken to up to the level of the export licensing committee, for a full discussion on the picture’s merits. Maybe if two Expert Assessors were asked for their initial opinion, we might get a more consistent application of the criteria of what shouldbe stopped. And I can see the case for somehow ensuring that those who initially agree to accept a matching offer are under greater obligation to do so, to prevent situations where a campaign is undertaken but has to be abandoned because the applicant withdraws at the last minute. Fortunately, this scenario is rare, and in the case of the Penrhyn Rembrandt the campaign was never officially launched. 

However, the best way to improve the system is - let’s be honest - to have more money to buy the works of art we deem national treasures. At the moment, there’s not enough of money for us to buy all the things we want (or think we want - and don't forget that much goes straight into storage). When Deuchar says (about the Penrhyn Rembrandt), ‘in recent years, and to the consternation of many, it has been privately offered for sale on a number of occasions at an asking price far beyond the means of the most evidently appropriate public buyers – the National Museum of Wales, for example, or the National Trust itself”, we can perhaps discern that he thinks such works should be offered to an appropriate public buyer at a level they can afford. That is, at an artificially lowered price, or as an act of charity. 

But surely the best and fairest way to get around this issue is not to artificially create lower prices, but to somehow find more money to buy them, albeit at a fair price. But from where will we get this money? At root, we must realise that to a certain extent the majority of the public do not want to spend scarce resources buying lots of great art, even if they’re by Rembrandt. The reason regional museums are under threat, and the reason DCMS only gets 1% of total government revenue, is because the arts are not seen as a priority. That's a fact, albeit a painful one to us art lovers. In other words, if we want to buy more art, we art lovers need to dig deeper into our own pockets.

Therefore, where I disagree most with Deuchar is this: the best way to secure more treasures is by making a positive case of their merits - not by artificially trying to make them cheaper. That, surely, is the best way to get a wider, contributing public on board the Art Fund's brilliant and vital mission.


All ideas for any potential reform, or not, welcome - please send them in.

Update II:

A few years ago I discussed all this with A Very Senior UK Judge. He wondered, and I think more than half seriously, that if we went too far in tightening export controls, someone would one day take their case all the way to the highest European court (on the grounds that such restrictions infringed his/her right to enjoy their private property), and that they might well win. In which case, the whole system would come crashing down.

Update III - the Grumpy Art Historian agrees with AHN, mostly.

Update IV:

As an optimist, I can't help pointing out the good news: although many find it hard to accept, it was a Conservative administration (in 2012) which not only massively increased the amount of Lottery good cause money going to the Heritage Lottery Fund, but also changed the rules to allow that money to be spent on art acquisitions. That money has been instrumental in saving many important treasures, and will continue to be so. The Van Dyck self-portrait (to which the HLF contributed over £6m, and which was the first big test of the HLF's appetite for acquisitions) would probably have been sent overseas without these changes.  

And now a boast, and an idea; as an art lover and museum visitor, I too want to see even more money come in to buy pictures. That’s why, when I was helping write Conservative policy for the arts (in 2005 and 2010) I not only suggested the above changes, but also advocated creating a specific National Acquisition Fund. The man then in charge of Tory policy (one David Cameron) agreed with the idea, but insisted on changing the title to National Fund for Acquisitions, to avoid the unfortunate acronym. Perhaps we can persuade him to take up the idea again?

Update V - a reader writes:

I would challenge your suggestion that few ’national treasure’ paintings have left these shores over the past five years.  By definition, the Export Committee only considers artworks of utmost importance and therefore if the Committee temporarily stops an artwork from going abroad it is likely to be for a good reason.  I would suggest that the Committee does a ‘good job’ that balances the rights of buyers and sellers and the market overall as evidenced by the fact that of the thousands of paintings that have passed through the sale rooms over the past five years (to 2014/15) the Committee export stopped just 23 paintings (ie. 4-5 a year).  Are these 23  paintings not ‘national treasures”? If not then how should we view them?  

Of the 23 paintings, only six were saved (van Dyck, Stubbs x 2, Lorenzetti, Rimini and Manet).  Paintings by Turner, Poussin, Rembrandt, Brueghel, Claude, Hals, Guardi and Watteau have gone in addition to the Picasso and the de Bray you reference.  Why is this?  

I think you are right that the lack of funds available to British galleries to match the firepower of overseas buyers is a major issue.  A National Acquisition Fund is a great idea in principle but the source of sustainable funding remains unclear.  

Funding aside, I think there is also a real question mark over the appetite of our leading institutions to acquire these works.  If the Export committee is taking the trouble to provide such opportunities for British galleries then in my mind there should be some obligation on the sector to explain why the work in question is not to be pursued for acquisition.  It is currently too easy for museums to walk by on the other side.

And this brings us to the growing importance of a good campaign.  You suggest that the recent Picasso loss did not strike a chord with the public as did say the van Dyck self portrait and this is undoubtedly true.   However, it is a slippery slope to view each of these export stopped paintings in terms of how they can be packaged up for public consumption in a funding campaign.  Is our national collection richer for having secured another van Dyck (however wonderful and rare the self-portrait is) because it could be positioned as 'the world's first selfie' rather than less easy to digest paintings by de Bray or the Guardi? 

Update VI - a reader writes:

I would highlight a slightly different, but arguably more toxic problem with the export review procedure, one, ironically, which Deuchar is partly responsible for creating. The problem is rarely with works of art which come up before the reviewing committee, such as the Penryhn Rembrandt, but with the very major objects which are never even considered by the committee. This is not the fault of our export licensing laws, the excellent and efficient officials who run the tiny department responsible or the frankly brilliant committee members who represent amazing depth and range of knowledge but the so-called expert advisers who fail to submit significant objects for consideration by the committee. Take the Worcester College Ruisdael purchased last year by the Kimbell; an indisputably great Dutch landscape which surely met Waverly 2 and 3? It never even came before the committee, because the expert adviser made no case for its consideration and the license was simply granted. As academic art history becomes less and less interested in objects and more interested in theory and social contexts, the ability of national curators to adequately judge Waverly 2 and 3 and therefore discharge their duty as expert advisers comes under strain. During his lamentable period as director of Tate Britain, Deuchar oversaw the decimation of curatorial expertise. A small point, but it seems to me the major problem with the system.

Update VII - a reader from Germany writes:

regarding the national treasures. If the politicians want to act in the name 'of the people', then they should have a referendum before buying a multimillion piece of art. I wonder, when faced with the choice to buy a picture by say Rembrandt against improvements in public health, pensions, housing etc., what 'the people' will go for.

While a reader from the US writes:

In amending the Art Export Scheme perhaps a committee could make it known in advance that a work might be considered a national treasure when it is offered for sale and before a buyer has bid or offered to purchase it. This might reduce the price a bit but it doesn't create a certainty that it can't be exported and it provides a longer period to consider public acquisition irrespective of whether the buyer seeking the work is foreign or domestic.

More importantly, AHN has mentioned the importance to the art trade of Britain's respect for private property. As an economist and business consultant I can assure the reader that this deep respect for private property is core to the willingness of foreign businesses and investors to locate I the UK and to hold British assets. An infringement of this historically basic right could have economic affects beyond the art trade and the jobs it creates directly and that it supports in other services and industries whose products its participants consume in large quantities.

Update VIII - a reader writes:

Thanks for a very thoughtful essay.  One of the issues you rightly emphasize (and not only in this post) is the unintended consequences of well-intended policy measures.  Another is the difficulty of factoring into decisions the “opportunity cost” (one of the few economics buzzwords that is well-said): what else might have been done with the money and the effort or time involved?  Both require difficult assessments well beyond purely artistic quality, however difficult it surely is to determine what is or isn’t a “national treasure”.  Unfortunately, in my admittedly haphazard experience as an amateur historian of arts, curators tend to be among the most narrowly focussed people I have encountered, too prone to discount considerations outside their own professional compass or the views on arts of those outside their professionally academic community.  With many sterling exceptions, of course; but I do fear that contemporary academic trends accentuate the negatives.  I hope I am mistaken…. 

Another reader wonders if we should be saving things at all:

Firstly, it does seem rather rich to be invoking the dubious concept of a "national treasure" when so many of these artworks are by, of, or originally commissioned by, non-nationals. The Rembrandt portrait may have been in Wales for 150 years, but it has spent most of it's existence not being in Wales. I am Welsh and would love to see it here in Cardiff but the idea that the painting is a 'national treasure' seems ludicrous to me. 

Moreover, given that much of this material was hoovered up from Europe by the UK's wealthy aristocrats and industrialists during the 18th and 19th centuries, it smacks of sour grapes for us to then seek to prevent today's wealthy aristocrats (in the Middle East) and industrialists (in the US, Russia and China) from using their wealth from doing more or less the same thing. As an art lover I may not like seeing most of these works go, but I really don't feel that I have any rights in the matter, and the idea that there is some coterie of experts deciding what is a 'national treasure' and where the 'public interest' lies is not terribly appealing either....

I'm as susceptible as the next person when it comes to wanting to 'save' things. But there is undeniably an element of culture protectionism about the whole process.

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