7.2. Legislative requirements
Archival institutions need legislative authority in order to function effectively. At the minimum they require the right and ability to inspect records whilst they are still held by the creating agencies. They also require the right and ability where necessary to compel transfer as they see fit of certain records and archives to the archival institution. This right is made necessary by the fact that where the mismanagement of records and archives is identified, where the records and archives are clearly in danger or where the records and archives would benefit from transfer then transfer must be compelled even against the wishes of those who would want to retain them further in their departments and ministries. In the responses received forty one institutions said that they had the power to compel transfer against twenty four who did not have this capability.
The destruction of records should be controlled by the archival institution. This is necessary to ensure that no records with archival value are disposed of before appropriate considerations and appraisal processes have been applied. It is pleasing to note that fifty eight institutions control the destruction of records while only nine have no control over the destruction of the records. This control however must be viewed against the realities of the difficulties of imposing this control and perhaps the most accurate assessment was that made by Botswana National Archives which noted that while the legislation says that records cannot be destroyed without reference to the National Archives the actual situation is different.
Legislation must also provide mechanisms for preventing the export of archives. This is especially relevant in developing countries or in former colonial territories where significant losses have occurred.
Since the legislation determines the capability of the archival institutions to perform their duties properly, the adequacy of the legislative powers which archival institutions have is very important. It is pleasing to note that the majority of archival institutions feel that they have adequate legislative authority. Forty five countries felt that their legislative authority was sufficient while twenty six felt that it was insufficient.
The legislation that an institution operates under must reflect the needs of that institution at that moment. There is a need for the constant adjustment of the legislation. While nineteen institutions were operating under legislation passed in the period between 1980 and 1989 it was also clear that many others were operating under laws that had been passed a long time ago.
It was significant that Northern Ireland was operating under legislation passed in 1923, the Scottish Record Office under an Act of 1937 and Ecuador under a decree of 1938. Also interesting was that some archivists were unable to determine the legislation under which they operated and one answer merely said "Act of .....". Dominica did not have any legislation.
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