25 September 2013

Selling off the family silver

With the courts on vacation in August and September, and the summer exodus to art fairs, there have been few if any developments in English art law, which is my best excuse for the lack of recent posts.
However, I have noticed that the press and campaigners are increasingly focusing on something that has been going on ever since the recession bit in 2008, namely the sale of art by cash-strapped local government and other publicly funded organisations.  Christies’ appraisal of the contents of the Detroit Institute of Arts has led to a fear that the museum will be closed and the contents sold as part of the city’s insolvency process.  In England, many local councils have sold, or at least tried to sell, some of their art, from Henry Moore statues in public places (Tower Hamlets) to, most recently, the Chinese ceramics in a local museum (Croydon).
The campaigners rightly point out that the objects were usually given or bequeathed by benefactors with the intention that the local public should enjoy them.  There is also a political view against “privatisation”, or “selling off the family silver” as Harold Macmillan famously termed Margaret Thatcher’s denationalisations.  On the other hand, it is the valuable luxuries that should be looked to first when times get hard and, if the money cannot come from art sales, it will have to come from some further cut in services.  In the case of an insolvent public body, there will be deserving creditors to be paid, including local suppliers, staff and pension funds.
There are of course legal problems.

The first is in establishing ownership, for example there are particular problems arising from the relevant history of government reorganisation.  I covered an example of that in my post on the statue outside the Houses of Parliament [Res Nullius], and the ownership of Tower Hamlets’ Henry Moore has been challenged by Bromley Council [BBC News].  Then one needs to check if there was any agreement, condition or trust at the time of the original donation, preferably in writing, but there might be enough circumstantial evidence to persuade a court to construe something. Then the constitution of the public body, such as a museum, needs to be considered to see if sales are allowed and if there are requirements about the proceeds. Also, if items were bought with help from external funders, private or public, those funders may have a right to object, and funders and “friends” are likely to be unhappy even if other parts of a collection are sold.
At least with the traditional, slow decision making processes of public bodies, the political effect of protest campaigns and the potential for legal problems, there is every chance that we will have emerged from recession before too much public art is sold.

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