Britain's relatively casual attitude to its artistic heritage is once more under fire as three valuable works look set for export. Helen Rees reports

Whether or not Britain keeps three valuable works of art hangs in the balance. Mark Fisher, minister for the arts, has deferred the issue of export licences for all three while he waits to see whether British buyers are willing and able to match the prices already offered by overseas collectors. The objects include a chair by the Scottish designer Charles Rennie Mackintosh, a miniature portrait of Henry Stuart by Henry VIII's paintrix Lavinia Teerlinc and the painting Lot and his Daughters by the Italian artist Orazio Gentileschi.

The British have always viewed as rather ridiculous the idea that works of art bought in this country might be prevented from being taken abroad by order of the government. In 1913, the issue was dismissed in a report of the National Gallery trustees by Lord Curzon, himself a trustee of the National Gallery, when he conjured up the comic scene of foreign art collectors being stopped at Britain's ports. Curzon painted a preposterous vision - of "a rummaging in coat-pockets, and a digging in portmanteaux at Dover and Southampton". No gentleman could consent to such interference with his private property, and the subject was dropped for the next 37 years.

In 1950, chancellor of the exchequer Stafford Cripps appointed a committee to recommend a system for controlling art exports - decades after restrictions were introduced in other European countries. The result was the creation of a system still in use today. The Reviewing Committee on the Export of Works of Art advises government whether or not an export licence should be issued for an art work that one of the nation's art experts (usually keepers of national museums) has recommended keeping. To qualify, an object must be of outstanding historical, aesthetic, or scholarly importance. In Britain - unlike, say, Italy and France - there is no list of proscribed objects which can never be exported.

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The committee has the power to recommend that a licence be withheld, usually for two or three months, to allow a matching offer to be made by a British purchaser. If, by then there is no evidence of a serious intention to buy, then an export licence is issued and the work of art lost to the British public.

As a result of the system, the nation's heritage has been enriched in the past five years by the acquisition of: an effigy of the Duchesse de Nemours, a first cousin of Queen Victoria (Walker Art Gallery, Liverpool); an electroplated teapot by Christopher Dresser (National Museums of Scotland, Edinburgh); an Anglo-Saxon glass claw beaker (Maidstone Museum and Art Gallery); a Louis XVI painted and gilt bed (Leeds Museums and Galleries); a still life of a Cup of Water and a Rose on a Silver Plate by Francisco de Zurbarn (National Gallery, London); and a Neolithic stone ball (Aberdeen Art Gallery).

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On the debit side, Britain has "lost" the Coronation Bible of George III, a drawing by Michelangelo, a painting, Landscape with a Calm, by Nicolas Poussin, and an archive of manuscripts relating to the third edition of Sir Isaac Newton's Principia Mathematica.

Today the British system is either regarded favourably - as one which respects the interests of vendors, the art trade, and the state - or disparagingly, as vulnerable to political interference. It depends where you stand in the international art market. The artist, Lucien Freud, was both surprised and annoyed when one of his early works, The Painter's Room (1943), was export-stopped in 1994 - the first time the regulatory system had been applied to work by a living artist. The painting's owner was equally dismayed by the decision, and has since refused to sell the painting to either the Tate Gallery or Chatsworth House.

But it is the repelled purchaser who is most likely to feel aggrieved. California's J. Paul Getty Museum has been a vociferous critic of a system which, famously, thwarted its attempt to buy Canova's Three Graces. In 1994, the Getty accused the British government of reneging on its self-proclaimed commitment to "fair play", by extending the six-month licence deferral period on the sculpture for three months, to allow the Victoria & Albert Museum and the National Galleries of Scotland time to raise the purchase price of Pounds 7.6 million. On that occasion, the Getty vainly sought a judicial review of the minister's decision.

Two years later, the rights of a purchaser in an open transaction were disregarded by Virginia Bottomley, the heritage secretary, in the notorious case of the Becket Casket. As the Casket had been in Britain for less than 50 years, it was not subject to regulatory controls - or so everyone assumed. When the casket was knocked down at auction for Pounds 3.8 million in July 1996, the buyer, Lord Thomson of Fleet, had every right to take his property out of the country. But amid the brouhaha of a "Save the Casket" campaign in The Times, and the late decision of the National Heritage Memorial Fund to bid on behalf of "the nation", Bottomley used her discretionary power to revoke Sotheby's open individual export licence under which the casket would normally have been exported without further ado. Lord Thomson subsequently ceded his interest in the piece, which is now in the Victoria & Albert Museum.

Although the system is designed to protect the rights of vendors - they are guaranteed to receive the market value of the property, whether or not it is exported - they can lose financially from lengthy deferrals. In 1996,the export of the Holy Family with the Infant Saint John by Fra Bartolommeo was deferred for four months, before a licence was issued for its removal to the Getty Museum. During that time, the vendors are estimated to have lost several hundred thousand pounds in interest on the sale price of Pounds 14 million.

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Moreover, in the case of the Fra Bartolommeo, it was not a public museum that was interested in matching the offer from the Getty for the picture, but a commercial art gallery acting on behalf of a private client. Under the original system, the government could only take account of matching offers from public institutions in deciding whether to issue a licence. But in 1990 the rules were changed to permit matching offers from private individuals, as well as from museums and galleries. For Nicholas Ridley, then trade and industry secretary, it was a question of ideology: as he told parliament, "private ownership in this as in all other spheres is to be encouraged".

Ridley's input was greeted with dismay, and last year the regulation was modified to insist that private buyers provide "reasonable" public access and appropriate conservation conditions in conjunction with a public institution.

What are the system's prospects under Labour? In the past six months, licences have been temporarily withheld on a small, but typical, group of heritage objects, including a Georgian silver eggcup frame with ten eggcups (Pounds 120,000), a conversation piece by Gawen Hamilton, The Wedding Party of the Marriage of Charles Bohem to Jane Du Cane (Pounds 850,00), and a pastel by Hugh Douglas Hamilton of Antonio Canova in his Studio (Pounds 550,000). But this appearance of "business as usual" obscures a bleak outlook: without the resources to match the market prices offered by overseas buyers, museums will be increasingly less able to benefit from the system. The problem is that dire warnings of the consequences of underfunding in the arts have the same effect as a chorus of boys crying wolf. We have been here before. In 1990 the list of exports from Britain included: the Badminton Cabinet (Pounds 8.7 million), Constable's The Lock (Pounds 10.9 million) and Van Dyck's Duke of Hamilton (Pounds 4.5 million).The art market was booming, and the purchase grants of national museums had been frozen for six years.

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Since then, the National Lottery has been established - but the financial safety net museums hoped the lottery would provide was never fail-safe: regional and university museums found it especially difficult to raise the "partnership funds" required to make up the purchase price, as required by the Heritage Lottery Fund. Now, under Labour's "People's Lottery", there will be less money for heritage. And unless museums can afford to match the purchase price in a reasonable proportion of cases, the export control system may well begin to feel the strain once again.

Helen Rees, at the University of Manchester, is writing a PhD on the dispersal of historic art collections.

WILL THEY STAY IN BRITAIN?

* Lot and his Daughters (c1628) by Orazio Gentileschi (Pounds 3.6million).Gentileschi, court painter to Charles I, made five versions of this subject. This canvas is one of four variants of the same composition; the fifth, much larger picture, was painted for Charles I and hangs in the Museo de Bellas Artes de Bilbao. There are no works by Gentileschi in the National Gallery, London, and in 1995 the gallery tried to buy another large Biblical work, The Finding of Moses, but was outbid at auction. The price was Pounds 4.6 million.

* A miniature portrait of Henry Stuart (1560) attributed to Levina Teerlinc (Pounds 122,500). Teerlinc was "paintrix" to Henry VIII and a gentlewoman in the royal households of Mary I and Elizabeth I. It is thought that she painted this portrait of Henry Stuart - popularly, Lord Darnley - when he visited the court of Elizabeth. The subsequent ramifications for Scottish and English history of Darnley's marriage to Mary, Queen of Scots in 1565, make this an object of considerable interest for political, as well as art, history. The Scottish National Portrait Gallery is the obvious destination for the miniature.

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* A chair (1904) by Charles Rennie Mackintosh designed for Hous'hill, Glasgow (Pounds 160,000). Hous'hill was the home of Mackintosh's patron, Catherine Cranston. The chair is one four he designed for her music room. Hous'hill was demolished in the 1940s, and so the chair cannot be returned to its original setting. It would be a welcome addition to a Scottish - particularly Glaswegian - collection.