ACE does a U-turn on measures to protect its reputation as pressure mounts to respect freedom of expression.

Photo of a cherub statue with cloth tied around its mouth
Photo: 

Greg McMullen (CC BY-NC-SA 2.0)

Arts Council England (ACE) is changing the draft terms and conditions for its National Portfolio Organisation (NPO) grants. Last week AP revealed that a clause in its draft contracts permitted ACE to “impose additional terms and conditions” on an NPO if it judged that the organisation’s staff, trustees, volunteers or anyone else “closely involved” with it may be acting so as to have a “detrimental effect… on its [ACE’s] reputation as a distributor of public money or as a Government sponsored body”. But further to a storm of protest on Twitter and concerns being raised across the UK about the implications of the contract on freedom of expression, ACE has backed down and will be removing from its terms and conditions all reference to its reputation and striking out the all-encompassing list of people bound by these terms.

Under the replacement clause, ACE may impose additional conditions on a grant if it “has reasonable grounds to believe that the Agreed Activities are being carried out by the Organisation in a way that may have a detrimental effect on the Agreed Activities or on the Arts Council’s role as a distributor of public money. For the avoidance of doubt, this would apply to the manner and speed of the delivery of the Agreed Activities or to any illegal or negligent actions by the Organisation and not to any artistic decision made by the Organisation.”

The first hint of a possible U-turn was given last night in a late-night tweet by ACE Chair Sir Peter Bazalgette, who in conversation with @Article19, said: “that is not the clause going into the NPO agreements in January. So remember not to believe everything you read." Given the implication by the ACE Chair that AP’s reporting of the story was inaccurate, AP asked ACE to clarify the situation and for Sir Peter Bazalgette to correct the impression he has left on Twitter that the story is not to be believed. A spokesperson said: “Whilst there are no factual inaccuracies in your piece, as you are aware, we feel that it isn’t balanced. If you had made it clear during our exchange that you felt this was a ‘gagging clause’ we would have responded to your inaccurate interpretation of the clause more specifically. It has never been our intention to restrict organisations from speaking about Arts Council decisions or policies, and/or to allow for funds to be withdrawn if an organisation takes an artistic position that is politically sensitive. The Arts Council seeks to protect, not undermine freedom of expression at every opportunity. However, it’s clear that the wording was open to misinterpretation, and so we have taken the opportunity therefore to clarify the wording of this clause… We may also make other tweaks and changes to the draft Funding Agreement during the negotiation phase to clarify and simplify wording, and to respond to feedback where appropriate.”

ACE has also given two examples of how the new clause might be applied. One relates to the failure of an organisation with respect to Child Safeguarding: “if a Board were to refuse to take steps to suspend a volunteer, or prevent him from working with children whilst a police investigation was underway.” The other relates to an organisation’s failure to meet project milestones that would indicate that a talent development programme would not be delivered.

 

For the avoidance of any misunderstanding, we publish here a full transcript of AP’s email exchange with ACE in reverse date order.

Author(s): 
Liz Hill

Comments

Just to be clear, when we said to Mr Balzagette "not a word of truth in it?" it was a straight forward question to provoke a yes or no response after he said that the clause would not be in the contract. Having read the pre and post story clause in the terms and conditions Article19 would not have interpreted either as a "gagging clause" however.

in the email exchange with ACE you mention a link to a piece on Article19 that was removed because they said it was inaccurate. We have no record of any contact from ACE proving something in a written piece was inaccurate, what article was that exactly?

ACE contacted AP on 30/01/2014 in connection with Article 19's feature entitled 'Dark Money' http://www.article19.co.uk/theevilimp/dark_money.php AP had flagged this article to our readers as a 'good read' using a verbatim section quoted from the piece, which included the statement that ACE had "pre-emptively decline[d] a Freedom of Information request for the data." A previous email exchange between AP and ACE had implied that ACE would decline the Freedom of Information request in question, but at that time it had not actually been declined (and indeed, the information was subsequently provided). When ACE asked us to change the words on our website, we told ACE: "In fact those were not our words, so to have them removed you need to contact the author at Article 19. We are simply quoting them. Until such time as you have resolved this with the author, we’ve taken that paragraph off our website." We were unaware that no such request was ever made of Article 19.

Sorry Liz, I’m with ACE on this one. You used “gagging clause” twice in the article, including the headline. I don’t read the section in question as a “gagging clause”; which is widely understood to be a hostile controlling of an employee or client, with implications of covering up something nefarious somewhere in the story. This seems far more straight-forward and as ACE has stated: someone acting in a way to bring ACE into disrepute over, say a child protection (the crime de jour; though no less serious for that – but death to all associated with it) or failing to come up with the goods.

Oh dear Liz, I’ve just read the article above and you are playing fast and loose with what is said or implied. Your headline for a start: “Arts Council backs down over gagging clause.” Nope. ACE did not back down. It could not have backed down from a position it did not hold, merely that you accused it of holding. It clarified the wording so that there could be little doubt that what it meant to say was more clearly said. That is not backing down, it is rephrasing for clarity. Then you compound the cheap journalism with a cheap jouro-boo-word: “U-turn”. This is a cliché used to hit politicians over the head implying they have done, er … a U-turn …which must be bad … mustn’t it? Answer: Well, no, not always. Maybe doing a U-turn is about learning, listening and changing to get things right. And, no, ACE has not done a U-turn because it was never going in the direction you accuse it of U-turning from in the first place. Now I’ll be a bit rude: I diligently read Arts Professional because I am involved in the arts – and I wrote an article for it a long time ago. But I do find it all a bit boring and if this is the way you are pepping it up, I think it is not the right way.

I think ACE’s changes are is far more fundamental than ‘clarification’ and all the better for that. I – and many others – did feel the first draft was a ‘gagging-order’ because as originally drafted it was not restricted to issues such as ‘child protection or failing to come up with the goods’. As drafted it seemed to want to control individuals (staff, governing body, volunteers) from doing anything which might have a detrimental effect on the Arts Council’s reputation as a distributor of public funds. The new wording makes it clear that any control is limited to the Organisation and its Agreed Activities– and that seems entirely reasonable. By the way, if they are making such fundamental changes (and not just clarifications) and other ‘tweaks and changes to the draft Funding Agreement during the negotiation phase to clarify and simplify wording, and to respond to feedback where appropriate.’ I wonder when these changes are to be shared with funded organisations or are they to waste time by taking out-of-date drafts to their Boards for consideration? ACE says it ‘has never been our intention to restrict organisations from speaking about Arts Council decision or policies’ - they should post this in large letters on their website because the general impression is that people are afraid to speak out because it would jeopardise their funding.

Bill Brookman obviously has more confidence in ACE than many clients. The fact that so many organisations did interpret it as a gagging order says a lot. How else to raise questions? Funded organisations dare not speak out or raise awkward questions. No point in asking your ‘Relationship Manager’ because they just refer to the 59 pages of Guidance Notes to ‘assist’ them in their ‘negotiations’ with NPOs (this in addition to the 33 pages of Draft Funding Agreement and Terms and Conditions) and if they can’t find the answer in those Guidance Notes they say they will seek further information and come back to you. Hardly conducive to a constructive debate!

Having seen a draft NPO Agreement (not a contract as widely reported) and been horrified by the way the clause in question was phrased I am extremely relieved that ACE has decided to reconsider. I fail to see how this could have not been read as a gagging clause as it denied anyone working for the organisation, including volunteers and Boards the right to criticise ACE. This was denied by ACE, but for any organisation reading the clause this was what it immediately brought to mind, whether it was intended or not. The fact is that it was a badly written clause that has created much anxiety. This clause totally undermined any sense of trust that is needed when making such an important agreement. Thank you AP for bringing it into the open and thank you ACE for reconsidering.

Well done Liz, you have performed a really useful service in getting ACE to withdraw that clause. While it may have originally been drawn up to deal with issues like paedophilia, once in place, it opens the door for ACE to curb any criticism it likes – from 'any person.. closely involved in carrying out the Agreed Activity ...acting in any way'. This is an amazingly stretchy definition. (The clause also allows ACE to be both prosecutor and judge.) ACE is a large organisation and, if in a sticky situation, one or two of its officers could well be tempted at some future point to use the clause to gag critics. It would probably be done quite subtly. There is a long history of large state bodies utilising ill-defined powers to protect themselves. If the clause was an attempt to deal with paedophilia, it should have been much more tightly drafted and, anyway, there are other ways for ACE to deal with that situation should it ever arise. Thanks heavens this dangerously open-ended power has now been taken off the table.

As an example to illustrate the purpose of the clause this seems ludicrously sensationalist and hysterical, it seems almost designed to imply that "if you object..you are supporting child abuse!!!". If ACE relationship managers aren't already ensuring that organisations working with children have appropriate child safeguarding policies...

OK, I’ve slept on it and read the other comments. I’m coming round to more sympathy with the AP view contra ACE. … a U-turn!