There has been some unusually welcome news, at least for literature lovers: rare manuscripts by the Brontë sisters, as well as books and manuscripts by other renowned authors, which all formed part of the Honresfield Library, have been saved for the nation. The library collection was due to be sold at auction by Sotheby’s in May 2021, but the auction house agreed to postpone the sale to allow time for a consortium of institutions, known as the Friends of the National Libraries, to raise funds to buy it. This they did, and the £7.5 million raised was matched by a generous donation by Leonard Blavatnik, ensuring a happy ending to this story.

However, even if the auction sale had gone ahead, if any collector or institution outside the UK had bought any of the most sought-after items, such as a handwritten manuscript of poems by Emily Brontë, annotated in pencil by her sister Charlotte, or some of the earliest works and poems of Robert Burns, also in his own hand, there is a considerable likelihood that their export would have been deferred while an assessment was made as to whether the items were of sufficient national importance to allow UK institutions the opportunity to buy them.

In this article, our art law specialist Lisette Aguilar outlines the export licensing regime for cultural goods and explains the Waverley Criteria.

Can national treasures be permanently exported?

Broadly speaking, if a work of art or other cultural good is over a certain value threshold and has been in the UK for more than 50 years, it needs an individual export licence to be permanently exported from the UK.

An application should be made to the Arts Council and must give details of the full known provenance of the item as well as a description; once received by the Arts Council, depending on its potential significance, it may be referred to an Expert Adviser, such as an appropriate senior curator in a National Museum.

The Expert Adviser will then consider whether, in their view, any of the “Waverley Criteria” apply to the item in question, such that its departure from the UK would be a misfortune. The Waverley Criteria, so called after the 1950 committee chaired by Viscount Waverley, are as follows:

  1. Is [the object] closely connected with the UK’s history and national life?
  2. Is it of outstanding aesthetic importance?
  3. Is it of outstanding significance for the study of some particular branch of art, learning or history?

If the Export Adviser does object to the granting of the export licence on any of those grounds, the licence application will then be referred to the Reviewing Committee, which will further consider the Waverley Criteria. A cultural object need only meet one of the Waverley Criteria to be deemed a national treasure, although some objects might fulfil more than one of the criteria. These criteria are not mutually exclusive and are all of equal importance.

The Reviewing Committee will meet usually two to three months after an objection has been made by an Expert Adviser; the export licence applicant is allowed to attend the meeting with its own expert and to submit a written statement in advance. If the members of the Reviewing Committee find that the item satisfies one or more of the Waverley Criteria, the licence application is deferred for an initial period to enable a serious expression of interest to be put forward to buy the item at fair market price to keep it in the UK.

If such an offer is made, there will be a second deferral period during which time funds should be raised and the sale completed. If there is no serious expression of interest during the first deferral period, or sufficient funds are not raised during the second deferral period, then the item can be permanently exported from the UK.

How does this apply to manuscripts?

It should be noted that in the case of manuscripts, the Expert Adviser may conclude that the UK national interest can be satisfied by keeping a copy or copies but allowing the export of the original(s).

Nevertheless, manuscripts can still meet one or more of the Waverley Criteria: for instance, Benjamin Britten’s complete draft score of “The Young Person’s Guide to the Orchestra” was deemed to fall within “Waverley One” or the “History” category and “Waverley Three” or the “Scholarship” category and was eventually acquired by the British Library.

Given the incredible rarity of, for instance, the handwritten manuscript of poems by Emily Brontë, which are surely an inherent part of our literary history and most likely of outstanding significance to the study of her work and sisterly relationship, it is hard to imagine that this would have been allowed to leave the country.

Perhaps the last word on this should go to Charlotte Brontë who wrote in pencil at the end of her sister’s manuscript: “Never was better stuff penned”.

If you have any questions on applying for an export licence for works of art or manuscripts, or any issues arising from this, please contact Lisette Aguilar.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.