From Egypt to Glasgow: holding and contributing to public art | Alan Eccles, partner, Brodies LLP

The background to the situation 

The sale in 2014 of the 4,000 year old statue of Egyptian high official Sekhema to a private collector by Northampton Borough Council caused much controversy. As the matter has developed it has highlighted a number of issues for holders of public art as well as current and prospective donors. It also allows us to reflect on a Scottish case - the Burrell Collection and the Burrell (Lending and Borrowing) (Scotland) Act 2014.

Northampton Borough Council sold the Sekhemka limestone statue for nearly £16 million at auction to help fund an extension to the town’s museum. The view of Arts Council England (the body which oversees the ‘Accreditation Scheme’, as it is known) determined that the sale breached the standards underpinning the scheme for the proper management of a public collection. Not only did the decision result in immediate loss of status for the museum, it is also the basis of a freeze on a re-accreditation application until August 2019. While the Council will have considered the longer term benefits of the sale generally (e.g. using the sale proceeds to fund the delivery of wider improvements to the museum offering), the loss of accreditation can have significant effects for a museum. 

As well as restricting access to the ‘museum community’ that lack of accreditation leads to, the sale has had some potential and actual financial effects. Importantly, according to the Museums Association, the museum has lost opportunities available from funding sources that would otherwise have been open had the sale not gone ahead. 

The decision to sell

In the sector, those managing public art will have difficult decisions to make. Often these, as with Sekhemka, will involve balancing issues of finance, curatorial integrity, maintaining accessibility, public engagement, the Accreditation Scheme, (international) reputation, public service undertakings and expectations, as well as impacts on potential funding streams.

For museums and galleries with charitable status, it will be important for the board of trustees to carefully consider decisions of this nature and be able to objectively justify and explain how a decision (taken with care and diligence on the basis of appropriate advice and engagement) would benefit the furthering of the museum or gallery's purposes. In the context of Northampton (where the decision was by a Council) the reported comments of the council were notable: that it was adamant the decision was right and the council would ‘definitely do it again’, even with the benefit of hindsight and that ‘Sekhemka was not on display, no-one knew it was here but the sale would allow us to expand the museum.’ Of course, one might argue that the loss of accreditation, the likely closure of certain funding routes, and the reputational risks, should have mitigated against financial positives attached to the sale and the fact the statute was rarely on public display. 

The government export ban

Amid pressure from a number of local, national and international sources, the Department for Culture, Media and Sport (DCMS) applied a temporary export ban on the statute to prevent it being transferred outside of the UK. The export ban expired on 29 July 2015 and it is understood the DCMS will consider an extension to the ban (to 29 March 2016) if it became aware of an attempt to raise funds to purchase the statue.

The issue of the export ban has underlined the feelings towards the statue and desires to restore it to public display (which, of course, Northampton would point out had not been the case).

Supporting the wishes of donors and funders

In a 2014 statement regarding the sale of the Sekhemka limestone statue, the Arts Council England said “it is of great importance that the public retain their trust in museums to look after the collections held in their name. There is a very real risk that this trust, and particularly that of potential donors and funders [our emphasis], will be seriously undermined if disposals from public collections are seen to be driven by financial considerations and in breach of our professional standards and ethical code”, highlighting importance of donors and funders to museums and galleries.

A Scottish case

The parliamentary scrutiny of the Burrell Bill (which became the Act) directly considered the important role of potential donors to, and funders of, collections held for the public. Burrell proposed to amend a restriction on lending overseas, and the final Burrell Act shows that amending restrictions can happen and can support the underlying aims of the original gift (the legal basis for the majority of the Burrell Collection) or bequest (largely legally irrelevant to the Burrell Collection, despite much coverage about altering Sir William’s will) or charity (relevant to about 80 items out of the Burrell Collection’s circa 9,000). It is also of note (as set out in documents accompanying the introduction of the Bill to the Scottish Parliament) that as part of the pre-parliamentary scrutiny process, the Burrell proposals were subject to stakeholder and visitor engagement and surveys.  

Making conditions work- legal locksmiths

The Burrell Act does raise wider points that are emphasized by the Northampton situation, which are important for those wishing to donate art to the public as well as those running and leading public museums and galleries. For those wishing to donate or fund, it is vital to consider how to properly and effectively frame any conditions and restrictions attaching to such philanthropic actions. The drafter of a will, gift or contract must consider whether any restrictions should attach, how the restrictions and conditions should be crafted, the consequences of breach or complete failure, and mechanisms for review and amendment. If the Burrell Act looked at cutting keys to unlock a restriction or condition many decades later, the maker of a restricted or conditional gift or bequest has the opportunity proactively to be a locksmith. They can design the lock and should also consider the role of any future key(s) and how a key may be fashioned. Those preparing documentation to underpin a gift or bequest need to provide a sufficiently robust lock to avoid assets being used beyond, or even against, the wishes of donors or funders. At the same time they do not want to create a situation where the bequest or gift ‘falls’ due to undue inflexibility rendering it useless or unworkable.

Whatever legal mechanism is used for the philanthropic action, it should be made clear how any modifications can be made, and by whom. Is there a power to modify? Who needs to approve change? Are there review dates? Under what circumstances can amendments be made (e.g. tax, societal, economic, technical changes, or changes to the recipient body)? If the lock is to be particularly robust, or if certain conditions are ‘red lines’, it should be made as clear as possible in the original documentation.

Ultimately there needs to be informed discussion about restrictions and conditions to meet the appropriate wishes and aims of the donor or funder at the earliest opportunity. Those creating and agreeing the legal documentation need to make sure there is a workable balance between ‘locks’ and ‘keys’ to ensure the art is used properly, but that there are mechanisms to avoid inflexibility ultimately undermining the philanthropic and cultural aims of the gift or bequest.

Alan Eccles is a Partner in the Private Client Department of Brodies LLP, solicitors, his work covers charities, private client and parliamentary matters.