THE DEACCESSION DEBATE IN UNCERTAIN TIMES.
| Author | Gould, Emily |
ABSTRACT
The notion that museums hold their collections for the public in perpetuity has been challenged in recent years by a number of high-profile sales from museum collections. These hail principally from the United States, but there are also examples from UK institutions. The motivations for such sales are far from uniform, but inevitably, financial drivers often loom large. The circumstances engendered by the global pandemic during 2020-2021 have increased financial pressure on museums. Faced with stark choices, including the prospect of closure, museums have had to make difficult decisions, and some have sought to embrace a more flexible and pragmatic approach towards collections. The reaction to such initiatives has been distinctly mixed, with praise for courage in the face of adversity often overshadowed by concerns about undermining public trust. This article will consider these difficult issues, exploring the legal and ethical barriers to deaccession, and asking whether there are lessons to be learned from the cases which have arisen on both sides of the Atlantic.
INTRODUCTION
For several months during the later 2010s the issue of deaccession seemed to dominate the arts press. This started with the announcement in the summer of 2017 by the Berkshire Museum in Pittsfield, Massachusetts, that it intended to sell more than 40 works of art from its collection. Its aim was to raise funds of around $55 million from the sale of works including two paintings by Norman Rockwell which the artist had personally donated to the museum. A public outcry erupted, a legal challenge was mounted, the museum was roundly condemned and sanctions ensued.
Whilst the legal wrangles over the Berkshire sales were still underway, the University of La Salle in Philadelphia, seemingly undeterred, declared its plans to auction off 46 pieces from its renowned art museum. The announcement triggered student demonstrations and highly critical letters of protest from various interested parties.
A little further north, and a matter of weeks later, in the spring of 2018, news broke that a national institution, the National Gallery of Canada, was planning the sale of a painting in its collection in order to purchase an alternative work. The response was similarly hostile, with online petitions, the press, and even the heirs of the artist in question decrying the decision.
The public backlash faced by these institutions was somewhat reminiscent of the almost universal condemnation faced by Northampton Borough Council in the United Kingdom several years earlier, in 2014, in response to its now rather infamous sale of an ancient Egyptian sculpture known as Sekhemka. This sale resulted in the swelling of the Council's coffers by some 7 million [pounds sterling], but also in the expulsion of its Museums Service from the UK Museums Association and the loss of its accreditation for a five-year period.
The factors which drove these institutions to take their highly controversial decisions to sell were varied and distinct, but undoubtedly, matters of finance weighed heavily in each case. As financial pressures have increased markedly for museums across the globe during the pandemic conditions of 2020-2021, the difficult issue of deaccession has once again featured in newspaper headlines and sparked robust debate. This article explores the challenges museums have faced, perhaps on an unprecedented scale, in balancing their mandate to care for their collections with their responsibility to work for the optimum public benefit.
The hurdles to disposals from museum collections are significant, and derive from both legal and ethical considerations. The legal restrictions will be addressed initially, after which the focus will shift to the sphere of museum ethics. As will be seen, the law may, on some occasions, present a non-negotiable barrier to any deaccession plans, but more often than not, the situation is much less clear-cut. Difficult ethical questions are often paramount, and crucial matters of reputation, financial propriety, trustee conduct, media management and stakeholder relations all play their part. The unusual conditions museums have faced over the eighteen months from March 2020 have muddied the waters further in some respects, adding yet another layer to the complex mix of competing priorities and considerations. The article will explore a number of case studies to examine how museums in both the United Kingdom and the United States have addressed these questions and whether lessons can be learnt.
LEGAL CONSTRAINTS ON DISPOSALS LROM MUSEUM COLLECTIONS
Constraints Deriving from Statute
Legal barriers to deaccession (whether by way of sale or any other means) come in a number of guises. The most obvious and transparent of these is the statutory prohibition against disposal contained in the various statutes governing the UK national institutions. The statutes which created these museums were based on the premise that the institutions would protect and conserve their collections and make them accessible to the public in perpetuity. Thus the governing statutes impose restrictions of varying degrees of severity on disposal. The National Gallery, for example, can never sell any item in its collection; (1) in fact its only option for disposal of any kind is to transfer the object to another specifically designated institution. (2) The Trustees of the Wallace Collection are bound by even tighter restrictions: they may neither add nor remove any items from the permanent collection, though loans have recently been deemed possible. (3)
More commonly, disposal (which can generally be by way of sale, exchange, gift or destruction in some cases) is permitted by the relevant statute in specified circumstances. These include when the object is a duplicate of another in the collection, (4) or where an object, in the opinion of the relevant board of trustees, is 'unsuitable for retention' in the collection and can be disposed of without detriment to the interests of students or other members of the public. (5) Disposal by destruction is possible in most cases too, for items whose condition has deteriorated to such an extent that they have become 'useless'. (6) The rights of disposal provided are generally without prejudice to any conditions prohibiting or restricting disposal, for example in a trust deed or bequest, and cannot be exercised inconsistently with such conditions. (7) Another important stipulation in the current context is that in the case of a sale, any proceeds should be used to purchase objects to add to the collection. (8)
The law is not set in stone, of course, and whilst the amendment of statutory provisions can be a lengthy and arduous process, it has been achieved on two notable occasions in recent years in respect of museum disposals. The enactment in 2009 of the Holocaust (Return of Cultural Objects) Act (subsequently extended by removal of an initial ten-year sunset clause) (9) has enabled the boards of the institutions listed (10) to deaccession objects in response to claims for Holocaust-looted art (provided certain conditions are met). (11) A few years earlier, in 2004, the Human Tissue Act (at section 47) allowed for the return in some circumstances of human remains from institutions bound by deaccession restrictions. (12)
Legislative change has also been implemented to enable disposals on a much more local scale. Private legislation was enacted in Scotland in 1997, for example, to vary the conditions of a gift and bequest by Sir William Burrell which had forbidden loans of objects he had donated to the City of Glasgow Corporation. Such restrictions were considered to have the effect of preventing the securing of reciprocal loans, prompting a new law to enable some of the works in the Burrell collection to be lent subject to certain conditions. (13)
Other Legal Constraints
The statutory constraints described above apply to only a limited number of institutions in the United Kingdom (principally those with national remit). They are not relevant in the United States, where a different legal, political and governance framework prevails. Almost all US collections are owned and controlled by private foundations, overseen by boards of trustees and, generally, ultimately answerable to state Attorneys General. There is no overarching federal culture ministry with the role of maintaining 'national collections' for the benefit of the public. (14) This means that the statutory legal restrictions in place in the United Kingdom have no direct legal equivalent in the United States. (15)
In addition to statutory constraints, there are numerous other legal hurdles to disposal which potentially apply to almost all institutions on both sides of the Atlantic, whether national or state bodies, local or provincial entities, public organisations or private foundations.
Most museums are formally constituted as a particular type of legal entity, most commonly a trust (which might be charitable or private), a company or, possibly, in the United Kingdom, a charitable incorporated organisation (CIO). (16) Such entities will be founded upon certain constitutional documents (for example a trust deed for charities, articles of association for companies or a constitution for CIOs). (17) All these governing documents will generally regulate whether and how any disposals of property owned by that organisation can take place.
Restrictions on disposal might also derive from legal conditions attached to the acquisition of the item in question. For example, if an acquisition was externally funded, the grant agreement under which funds were provided might well restrict disposal, and will often require that in the event of a sale the funds awarded (or a share of the proceeds of sale) become immediately repayable to the relevant funding body. (18)
Charity law will also require serious consideration in the context of proposed sales. Very many museums...
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