Deaccessioning Public Collections

During these straitened economic times increasing numbers of public museums and galleries around the world have been driven to consider deaccessioning works in their collections; and many have done so. There are clearly ethical and policy arguments for and against doing so, but what, if any, are the legal considerations?

Does the British Museum have the legal power to deaccession the Parthenon Marbles, or Tate Modern its Rothkos or Warhols? Both are public collections constituted and governed by UK statute law, as are most other national museums and galleries, and their deaccessioning powers are specified by the law. The British Museum Act 1963 allows works to be deaccessioned from the collection only if they are duplicates of other works or are so damaged as to be ‘useless’.  Similarly, The Museums and Galleries Act 1992 allows Tate to deaccession works in its collection where the object is a duplicate of another in its collection, or where a work ‘is unsuitable for retention … and can be disposed of without detriment to the interests of students or other members of the public’. Tate is also allowed to deaccession by transfer between national museums or, in the case of damaged works, be ‘disposed of by any means including destruction, if their condition has deteriorated to such an extent as to render them useless’. Proceeds from the sale of any works ‘shall be applied … in the acquisition of relevant objects to be added to its collection’. Tate Modern reports having deaccessioned by sale only one work from its permanent collection: a duplicate print by Roy Lichtenstein.

There are three further significant public collections, which are non-statutory; each comprises substantial numbers of modern and contemporary works. The Government Art Collection, established in 1898, is now funded by the Department of Culture Media and Sport (DCMS). It currently has 13,500 works displayed in offices of government officials at home and abroad. A selection of works was exhibited to the general public for the first time at the Whitechapel Gallery in June 2011.

The British Council is the UK’s cultural relations body, established in 1934 as an independent arm of the Foreign and Commonwealth Office, and began its collection of British contemporary art in 1938. It currently has 8,500 post-1900 works that it uses to create international touring exhibitions or lend to other major collections in the UK and abroad. A selection of works was exhibited to the general public for the first time at the Whitechapel Gallery in 2009-10, and Paula Rego’s selection from the Collection is currently on display in Lisbon.

The Arts Council Collection began in 1946 under the aegis of the then newly created Arts Council of Great Britain. Its 7,500 post-1945 works are the most widely circulated of Britain’s national collections, via loans to museums and galleries in the UK and abroad.

Two of these national collections have begun to experience cuts in public funding: the Government Art Collection from £194,000 in 2010 to £104,000 in 2011; the British Council Collection from £150,000 in 2010 to £30,000 in 2011. The Arts Council Collection is likely to experience something similar – given, for example, the government’s 29.6% cut in revenue funding for Arts Council England (ACE) over the next four years. In this austere public fiscal climate, it is unsurprising that in March 2011 the House of Commons Committee for Culture Media and Sport suggested a merger of these three collections. ACE subsequently commissioned a review of them, and will report soon.

It is unlikely there would be any legal impediment to such a merger that might require, for example, new legislation. The Government Art Collection is effectively held by the government through the DCMS, and so deaccessioning would be a policy rather than a legal question – by way of some form of merger with the other two, or perhaps by way of transferring works to appropriate national museums and galleries.

The British Council is an ‘executive non-departmental public body’ constituted by Royal Charter in 1940 to operate at arm’s length from government ministers. Its charter does not specify what deaccessioning powers the Council may exercise in relation to its collection, and so it should have the power to do so – although the Secretary of State for Foreign and Commonwealth Affairs is answerable to parliament for the council’s policies, operations and performance, and would naturally be interested in deaccessioning proposals.

The Arts Council Collection’s legal position is probably similar to that of the British Council Collection, though not quite as clear. The collection was established and developed by the Arts Council of Great Britain (also an ‘executive non-departmental public body’ constituted by Royal Charter, in 1946, to operate at arm’s length from government ministers); but in 1994 was divided into three separate arts councils for England, Scotland and Wales. Now administered by the Southbank Centre via the Hayward Gallery, the collection does not appear to be subject to deaccessioning restrictions specified in the arts councils’ Royal Charter or other legal instrument.

Beyond these statutory and non-departmental national collections, there are also public collections held by hundreds of local authorities throughout the UK. Their elected councillors have power to deaccession works; many have done so in recent years, usually to provide capital funds for the arts in their locality.

When a public collection (held by any of the bodies discussed so far) does have legal power to deaccession, other legal constraints may still prevent them from doing so. Works may have been acquired through gifts or bequests or purchases with specific legal conditions requiring, for example, that they be held by the collection ‘in perpetuity’ and should never be deaccessioned; or that they may be deaccessioned only with the consent of the donor/seller or their heirs/successors; or that they may only be sold (with or without someone else’s consent) if the proceeds are used to fund further acquisitions for the collection.

Public collections contemplating exercising any legal deaccessioning powers they may have will inevitably have ethical considerations. The oldest museums association in the world was established in the UK in 1889 ‘to guard the interests of museums and galleries’, and to set ‘ethical standards’ of professional behaviour by its individual and institutional members. The Museums Association relaxed its Code of Ethics in 2007 to permit deaccessioning in specific circumstances, including: a core collection should not be deaccessioned; income from selling works should not be used to meet a short-term operational deficit; deaccessioning should operate so as to benefit the remaining collection; there should always be full prior consultation with key stakeholders in the collection; and deaccessioning should be a measure of last resort. Since this voluntary code shift four years ago, public collections have begun to consider deaccessioning within the code’s new permissiveness; and many have done so. It is a contentious issue, not yet fully resolved by public collections, and likely to be debated for some time to come.

A seminar, Foul Play or Opportunity Knocks?, was held at London’s National Gallery in May 2011 to debate deaccessioning and disposal of objects from UK Museums. Interestingly, the event was not hosted by the public sector, but by the Art and Heritage Group of the London law firm Farrer & Co LLP.
© Henry Lydiate 2011

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.