Charity Law (2): The Tate and the Ofili Acquisition

A while ago I posted on the Beaverbrook Gallery dispute and the upcoming arbitration appeal: Art Law: "Intent", the Beaverbrook Collection and Donation Controversies. Ultimately, that dispute involved aspects of charity law in the art context. Thanks, now, to David Waterhouse for drawing my attention to another interesting charity law controversy involving a gallery, this time the UK's Tate (a path-forging art institution: see Roving Eye: Doris Salcedo at the Tate Modern). Whereas the Beaverbrook dispute dealt with whether the conveying of two major paintings, a Turner and a Freud, had been a gift by Lord Beaverbrook or merely a loan, in the Tate case, from 2006, the context is a major acquisition through money purchase by the Tate of "The Upper Room", a combined installation and set of paintings by Chris Ofili. As it transpired, Ofili was a member of the Board of Trustees when the purchase occurred and, after this fact became public through some digging by some anti-anti-art campaigners, the UK's charity commission found that the Tate, as a charity, was required as a basic principle of charity law to get advance permission when an acquisition confers a benefit on a trustee. A useful overview of the basic controversy can be found in a Bloomberg.com article, Tate Tightens Art-Buying Rules After Charity Commission Rebuke (by Linda Sandler). In it appears,

Why didn't the Tate ask permission for the Ofili purchase?
No one knew it was obliged to, [Tate Director] Serota said. No one at the Tate or at the National Audit Office or at the Department for Culture, Media and Sport had even suggested it was a general principle of charity law that if you benefit a trustee you need permission, he said.

For a 705,000 pound sterling purchase, it is hard to believe that a lawyer or two were not involved in shepherding the transaction; as for how hard it it is to believe a competent lawyer who (likely regularly) advises a major art charity did not know that advance permission was needed on these facts, I leave to you the reader.

...That said, if said lawyer was splendidly unaware that Ofili was in fact a Trustee, s/he may not have been aware of the conflict of interest that generates the charity law advance-permission requirement. In that sense, attention must fall squarely on the non-legal basic ethical compasses of everyone involved, who can be faulted if they did not intuit that a problem might just be present here. That being the case, what is the best solution for the future? Well, of course, call in another lawyer: "The Tate's reforms ... include the addition of the barrister Jules Sher to its ethics committee..."

As for Chris Ofili's "Upper Room" work, the Tate presented an exhibition with the following description:

Chris Ofili’s The Upper Room consists of thirteen paintings displayed in an environment especially designed by the architect David Adjaye. When it was first publicly exhibited in 2002, critics commented on the chapel-like qualities of the space and its lighting. The arrangement of twelve canvases flanking a thirteenth larger one suggests Christ and his Apostles, and the arrangement has an extraordinary sensory effect.
Each painting shows a rhesus macaque monkey, and each is dominated by a different colour, identified in Spanish on the elephant dung supports. In a text that accompanied the work’s first exhibition, a conservation biologist described the rhesus macaque as ‘loud, active, entertaining, fearsomely intelligent – the consummate cheeky monkey’. She also pointed out how rhesus monkeys have been venerated in certain religions, and observed that ‘monkeys may be godless but … rhesus macaques display a deeper degree of compassion for each other than do human beings’.
With this work Ofili raises questions about the relationships between civilization and untamed nature, between the religious and the secular.

I have always found Ofili's works (images thereof -- I have not yet had the fortune to see one in person) beautiful and have yet to decide whether his elephant-dung supports under his works are anything more than a gimmick. As for the rhesus monkeys, check two out. (All the others plus full picture credits can be found on the Tate site.)