The Evil Imp

The Gagging Clause!

Arts Council England has denied that a so called “gagging” clause will be included in the new contracts being prepared for the National Portfolio Organisations for the funding period running from 2015 until 2018.

Arts Professional magazine published a story on September 19th that suggested the clause in the contract would restrict the ability of organisations or individuals within those organisations from criticising Arts Council England or their funding policies.

“Potentially the new clause could not only prevent anyone connected with an NPO from speaking publicly about ACE decisions or policies, but it could also give the funding body the power to withdraw from arts activities that it initially agrees to fund, but which it subsequently judges to be too politically or socially sensitive”

When we spoke with the funding monolith they suggested that AP’s piece had highlighted a misunderstanding that could arise from a particular interpretation of one clause and that it will be amended before the actual contracts are sent to the NPOs for signing.

ACE also told us that the clause itself was there to ensure that NPO’s use the money they have been awarded for the “agreed activity”.

In an exchange with ACE Chairman Peter Balzagette on Twitter Article19 received this assurance;

We also put it to ACE, for clarification, that anybody in an NPO can say anything they like with regard to ACE policies or activities without fear of repercussions or potential loss of funding and their answer was a simple “yes”.

Free speech and expression do of course come with some caveats. You cannot libel or defame people or organisations (publish or say something in public that you know to be untrue) without repercussions. So be careful with your fact checking before you storm the barricades.

Arts Council England has since updated the troublesome part of the “additional terms and conditions” to say this;

if the Arts Council 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;

They also re-iterated that they have no intention of restricting any rights to freedom of expression;

“It has been suggested, incorrectly, that this new clause was intended 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.

Of course, this was not the intention. The Arts Council seeks to protect, not undermine freedom of expression at every opportunity. But it’s clear that the wording was open to misinterpretation, and so we have taken this opportunity to clarify the wording of this clause. “

The Curious Incident

The AP piece quotes Liberal Democrat MP Simon Hughes on the issue;

“Simon Hughes MP, Minister of State for Justice and Civil Liberties, told AP: “I think this clause is too extreme. I understand that ACE want to discourage organisations from public criticism but this wording is drafted also to control individuals and curb their fundamental freedom of speech.”

He “understands” that ACE would “want to discourage organisations from public criticism”? Why would that be understandable? The arts are, fundamentally, about free expression, unrestricted free expression and criticising Arts Council England, or any other public body, is not only an absolute right but absolutely essential. This is how we keep everybody honest or at least how we all try to keep everybody honest.

If Mr Hughes thinks that curtailing criticism is understandable then he should almost certainly not be a Minister for Civil Liberties.

Here in TheLab™ when we first learned of this story it raised a number of thoughts in our collective head. First of all you cannot write clauses into contracts that break the law and freedom of speech is a legally protected right.

If such a clause did exist in the final contract it would almost certainly be overturned in court, proving somebody was willing to spend the money to challenge it.

We are also not at all sure why there would be a need for such a clause given the paucity of criticism levelled at ACE from the NPO companies regarding their policies. Such a clause would appear to be completely pointless.

Even when NPO’s get their funding cut on a regular basis very little, if anything, is ever said in public about those decisions.

At the time of writing ACE was unable to confirm the date the final contracts would be sent to the NPOs.

Updated: September 24th 1.35pm with additional information from Arts Council England

[ AP Story ]