Yes Minister, but is it legal?

God help the Minister who meddles with art!

Lord Melbourne, Prime Minister; 1837-1841

I would need to be satisfied that standards of artistic excellence will be maintained and enhanced as a result of any changes.

Richard Luce, Arts Minister; 1990

The Minister’s initiative runs counter to the historic tradition of the arm’s-length principle.

Arts Council’s formal response to the Arts Minister, 1990

I would welcome the thrust of the Minister’s decisions. This is because they combine three main factors: devolution of many funding responsibilities to the regions, the strengthening of accountability from the regions to the Arts Council and a new strategic and policymaking role.

Peter Palumbo, Arts Council Chairman, 1990

Luke Rittner finds himself at odds with these proposals and believes it would be more appropriate for their implementation to be handled by a new Secretary-General.

Arts Council’s statement, 1990

The last statement was made following Luke Rittner’s abrupt resignation, after seven years as Secretary-General of the Arts Council, on March 28 1990; the previous two statements were commenting on the Arts Minister’s new arts funding plans over which Rittner resigned; the second was made by the Minister in response to public expressions of concern over his plans; the first well-known quotation speaks for itself, and is ironically in point today, the more so because Melbourne was Queen Victoria’s first Prime Minister and today’s office-holder is well known for her earnest espousal of Victorian values – though not, it appears, in the case of her directions to (or is it selection of?) the Arts Minister.

The public is faced with a Minister of the Crown immorally ignoring the raison d’etre of a Royal Charter – which created the Arts Council to ensure that the cultural health of the people of Great Britain would not be endangered by the kind of political manipulation that has caused Luke Rittner, quite rightly, to resign. It is for the Arts Council to determine, under its Charter any reorganisation of arts funding; not the Government. It is for the Council, not for the Minister, to decide whether and if so to what extent it should have a strategic rather than a hands-on operational role. And it is for the Council, not arts bureaucrats and local politicians to evaluate the effectiveness and efficiency of such regional arts bodies the Council may consider appropriate to receive devolved funding of functions.

Nor is it the case that the Arts Minister is unaware, or has no reasonable cause to be aware, of the traditional arm’s-length principle whereby the Government sets an overall arts funding figure but does not interfere with how it is distributed. In an exclusive interview published in The Independent (April 9 1990), the Minister is quoted as saying:

‘There is no question of the arm’s-length principle being undermined. We have to draw a distinction between not interfering in decisions made by the Arts Council on the artistic merit of certain organisations and on the management of certain artistic organisations on the one hand, and my responsibility to Parliament for how the distribution of tax-payers’ money is structured.’

Moreover, in the same interview the Minister professes that he would ‘need to be satisfied that standards of artistic excellence will be maintained and enhanced as a result of any changes’ brought about by the new structuring he is now determined to implement. The dissonances between these two observations exhibit woolly thinking at best, and transparent hypocrisy at worst: on the one hand, no interference with ‘artistic merits’ and, on the other, the need to be satisfied as to ‘standards of artistic excellence’. What room might there be for launching a challenge to this Minister (apart from the ballot-box, questions in the House, writing to your M.P, and so on)?

The arguable breach of the Arts Council’s Royal Charter might have been a strong card to play, but by whom? The Secretary-General resigned in protest. Having fought and lost-The Council itself registered a polite complaint that the Minister’s initiative ‘runs counter’ to the arm’s-length principle, but then accepted the Minister’s plans, supporting its Chairman, Peter Palumbo, who positively welcomed them. Since only the Arts Council, acting through its Chairman and Secretary-General, could arguably have any legal standing before the courts to challenge the Minister for exceeding the authority he holds on behalf of the Crown, the likelihood of any such challenge being launched on such grounds is improbable.

Who else?
Far stronger is the case that might be made out by other arts organisations aggrieved by any future decisions made under the new funding structure that reduce or deny them funds on the grounds of artistic merit. In particular, the London orchestras, who have already expressed deep concerns that the Greater London Arts Association (or Board to replace it) will be reluctant to continue funding all of them; the Manchester Royal Exchange Theatre, which has also expressed fears over regional cutting, as has the Leicester Haymarket Theatre which persuasively points out that its current budget exceeds the entire current budget of East Midlands Arts – whose new Arts Board might be required to provide funds in future. (Concerned voices from the visual arts do not appear to have been sufficiently orchestrated to be heard, at this stage.) Such organisations, together with others centrally funded at present, may wish to question what criteria the Minister and those working to his directions will apply, in future, to satisfy him that ‘standards of artistic excellence’ are being maintained and enhanced.

Ministers are not above the law, and may therefore by subjected to judicial review of their administrative actions in the courts which have powers to quash their decisions. This area of ‘administrative law’, successfully and increasingly developed by the courts over the last two decades, has produced some remarkable results. And although the rate of success for such challenges is on the low side (151 out of 409 applications in 1989), the very existence of the procedure is a deterrent to public authorities behaving in a high-handed way. Recently, for example, a successful case was brought against the Minister for Social Security questioning the lawfulness of his policies for distribution of the Social Fund (if local offices ran out of their allocation of funds, legitimate claims were being refused under the Minister’s directions).

Closer to the arts was the High Court’s recent quashing of the Secretary of State for Environment’s decision to give planning permission for the construction of architect James Stirling’s new building in the City of London (to replace the Mappin and Webb Grade II listed building, just across from the Mansion House). The reasons for the Secretary of State’s decision were sought, given, challenged and reviewed before the court; the question to be decided, in that and all such judicial reviews, is not whether the court agrees with the Minister or the objectors (in the Stirling case, Prince Charles, you will recall, described the proposed design as being akin to the 1930s radio), but whether the Minister arrived at his decision by a proper and just route – taking into account ail relevant criteria and excluding ail irrelevant ones.

In the case of the Stirling building, the court was not satisfied by Nicholas Ridley’s explanations of the criteria he used and applied to make his decision, which was duly quashed. What, then, might the Arts Minister’s answers be if challenged (to explain the criteria he would use and apply to decide whether ‘the standards of artistic excellence’ he says he requires have been maintained and enhanced) by those arts organisations that might find themselves aggrieved by any future denial of funds under the Minister’s new structure? Will he be able to explain to the court’s satisfaction the criteria he considers relevant in assessing ‘artistic excellence’: bums on seats, profits on re-sale of visual artwork, top ten book sales listings/album charts/TV and film audience ratings? Will the court allow expert evidence to be admitted to assist in this reviewing process: critics, reviewers, art/theatre/music/literary historians, curators, directors, producers, actors, authors’ and performers’ unions? Will the Minister be ‘able to explain why the Arts Council’s Royal Charter is drawn in terms which have traditionally been understood, by himself included, to leave such decision-making to that body, as originally intended by the Prime Minister of the day who will have advised the Monarch accordingly? It may even be argued that the Minister has no authority to determine such matters of ‘artistic excellence’ at all; in part because of the Arts Council’s specific role in this regard given under Royal Charter, and partly-because Ministers normally derive their authority (to decide matters in their discretion) from legislation enacted by Parliament – as in the Social Fund and Planning Authority cases. In other words, the Arts Minister, if challenged, may find it extremely difficult to cite any legal authority given to him by Parliament to make the decisions he professes he must make in relation to the spending of taxpayers’ money.

As for the Minister’s professed accountability to Parliament, as opposed to the courts of law, does he seriously anticipate Parliament calling upon him to answer for the artistic merits of projects funded by taxpayers through his office? Does he envisage the Lords and Commons debating the merits and demerits of the exhibition programme at the Hayward, as against the Arnolfini or Fruitmarket Galleries during any financial year? However ludicrous this may seem to us today, such debates and all other mechanisms for accounting to Parliament could very well be the result of the new funding structure the Minister is currently putting in place. In short, if the Minister does what he says and evaluates ‘standards of artistic excellence’ under his new scheme, he will make himself accountable to Parliament for those decisions; and that is precisely the point being made by Lord Melbourne over a century ago.

© Henry Lydiate 1990

 

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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.