The Charitable Uses Act, 1601

Citation

Cannon-Brookes, P. (1999), "The Charitable Uses Act, 1601", European Business Review, Vol. 99 No. 2. https://doi.org/10.1108/ebr.1999.05499bab.003

The Charitable Uses Act, 1601

The Charitable Uses Act, 1601

Peter Cannon-Brookes

Peter Cannon-Brookes is Joint editor of the International Journal of Museum Management and Curatorship, Oxford, UK

Keywords Collection management, Legislation, Museums

Fundamental differences between the legal and cultural environments of the common-law countries and those administered under civil law acquire an increasing sharpness as Euroland is transformed from a bad dream into a menacing reality. The motivation of European monetary union is overwhelmingly political, and not cultural or economic and, in the pursuit of lofty political ideals, inconvenient factors tend to be marginalised or ignored by those who are more concerned with grand visions or the permanent retention of power than the potential impact of their policies.

Unfortunately, the UK is extremely exposed in respect of the impact of European monetary union ­ and the unavoidable political union which follows on from it ­ on its national legal and cultural environment, not least because it has been deeply unfashionable to ask such questions. Generations of politicians since Edward Heath's government negotiated the UK's entry into the Common Market have preferred to wax lyrical over putative economic advantages while choosing to disregard the incompatibility of significant areas of common law with European civil law. Those countries of continental Europe invaded by France at the beginning of the nineteenth-century, administered by them for some 15 years and consequently endowed with the Napoleonic system, already share something of a common basic administrative "culture" which is totally alien to the common-law countries ­ England, Wales and Ireland ­ as well as to Sweden. In the domain of ordinary commercial transactions involving goods and services, the differences are relatively peripheral, but in others, not least those involving property and employment, they are central and crucial. More specifically, the different legal environments in which museum collections are held within the European Union nation states provide clear expressions of the varying cultural traditions which have given birth to them, and those differences are ignored at our peril. Given the priorities of Euroland, little patience is to be expected with regard to the eccentricities and inadequacies of British traditions, and in respect of cultural property ostensibly in public ownership the situation is liable to go from bad to worse.

The common-law countries, including England and Wales, the nations of the British Commonwealth and the USA, have well-developed concepts of trusteeship whereby chattels (movable property) are entrusted to the care of groups of selected individuals (trustees), to be held by them on behalf of the community for the purposes defined in the trust deed, while the civil-law countries, whose legal systems have evolved from Napoleonic law, generally treat museum collections as public property and as such inalienable, except in extremis. It is, in consequence, not entirely surprising that the equivalent of the American-English word "deaccessioning" (disposals from public collections, above all by sale) does not exist in many European languages, largely because the concept is entirely alien to their cultural traditions. Nevertheless, within the common-law countries, the attitudes adopted towards the concepts of the preservation of chattels in perpetuity for the benefit of the community and of deaccessioning, have diverged widely, to the extent that the pragmatic policies adopted by the American courts in response to their own national cultural environment threaten to undermine the very different cultural environment of the UK which, in this context, tends to take its lead from the common-law positions of England and Wales. For example, most British curators deprecate the practice of "trading up" as carried out in many museums in the USA, while curators in continental Europe find it difficult to reconcile such practices with membership of the museum community at all.

All this depends upon a clear understanding of the function of museums and the role of their collections within the community, not least the legal environments in which they are held. Notwithstanding the growing corruption of the word "museum" in recent decades, the historic meaning is clear and the identifying characteristics of museum collections ­ objects assembled and preserved unaltered in perpetuity within a specific intellectual environment ­ separate them from other valued accumulations of objects, including household goods, votive offerings and commercial stock. Despite a certain cynicism expressed by critics of museums, this position is not entirely theoretical and, although most museums will admit to having acquired objects in the past for which there would appear to be little justification today, the rationale applied at the time of their acquisition may not be readily comprehensible to us now. Very few museum collections are mindless, rather than quirky or just currently unfashionable and, like defence of the right to free speech, the right of such collections to survive intact and continue to put forward their particular views of the world, no matter how eccentric, is an obligation placed upon any democratic society by virtue of its having accepted the trust in the first place.

This archival role of museum collections is implicit in the 1996 report of the former Department of National Heritage, Treasures in Trust ­ A Review of Museum Policy, which stated that "a museum's collections are to be held on behalf of the public as inalienable cultural assets". On the other hand, the current drive to reduce net public expenditure on museums in the UK is coupled with an obligation to undertake increased trading activities, although very few of these museums, particularly in England and Wales, are so legally constituted as to enable them to trade effectively without hazarding their collections. The potential threats to these collections are very real, even if most politicians and administrators choose to ignore them. In the real world the debts to be incurred by a museum in the course of its trading activities have to be secured, either as a charge against its trading capital or by the guarantees provided by its funding body/bodies. Otherwise the museum obtaining credit is mortgaging its collections ­ an activity specifically outlawed by the conditions imposed by the Museums & Galleries Commission for its Museum Registration scheme.

At the heart of these problems is the fundamental issue that the rule against perpetuities forces museums and art galleries to set themselves up as charities rather than public benefit trusts, while the preservation of an archive of objects in perpetuity for the benefit of the public is not of itself a charitable purpose as defined by the 1601 Charitable Uses Act and subsequent legislation. This means that in order to qualify as a charitable trust, the museum has to adopt an acceptable charitable purpose as a "flag of convenience" and this is most often education. Nevertheless, the supplanting of the primary purpose of the trust ­ the preservation of specific chattels in perpetuity ­ by a secondary function brings with it great hazards and the Charities Commission is only too aware of the dangers inherent in the various fudges forced onto it.

If the preservation in perpetuity of certain specific chattels is the primary purpose of the trust, those chattels are held as the object of that trust and they have no pecuniary value as far as it is concerned because they cannot be mortgaged or converted, except in extremis. On the other hand, chattels held by a charitable trust whose charitable object is, for example, educational, are held as assets of that trust and the charitable object is increasingly held to take precedence over the original public benefit. This would mean that such museum collections are robbed of any special protection and may be treated in the same way as office furniture and vehicles. There is, however, no need to spell out the moral impropriety, if not illegality, of attempting to use collections, specifically assembled and preserved for museum purposes, as trading capital, since benefactors did not entrust objects into the care of museums only for them to be used as collateral in commercial and other non-museum activities.

Before the 1970s it was generally accepted that, notwithstanding a vast range of other activities commonly undertaken, the identifying characteristics of a museum were that it collected objects and preserved them for posterity. Those collections were vested in a variety of different types of bodies, but the precise nature of the legal arrangements was relatively unimportant when those bodies broadly subscribed to a time-honoured code of behaviour, even if they did not always fully live up to its ideals. Hence the shock and soul-searching which took place when Dulwich College openly breached those conventions and sold its Domenichino (now in the National Gallery of Scotland). In the maintenance of those conventions there was a tacit understanding that the bodies possessing museum collections provided modest funding for their housing and preservation, and that the museum institutions for their part accepted those limitations and did not indulge in attractive, socially justifiable but supplementary, activities which their funding bodies could not afford. This made for a quiet, object-centred life revolving around permanent collections, and one which is now all but forgotten.

The USA shares with England and Wales the 1601 Charitable Uses Act as the basis of its charity law, but its pragmatic traditions have tolerated a different approach in that museums there are encouraged to revise their "mission statements" at will, so as to legitimise the process of transferring tranches of their collections from inalienable objects to disposable assets. The well-publicised activities of high-profile American museums can provide dangerous models as the UK local authorities and universities find themselves struggling to reconcile their trustee responsibilities with the new trading culture being adopted today. However, most citizens of the UK do not realise that the vast majority of American museums are private institutions, with their collections vested in local boards of trustees subject to close public scrutiny, while an alarmingly high proportion of local authority and university collections here enjoy no such protection. Unless subject to special provisions, those collections are, by virtue of constituting part of the general collateral enjoyed by their owners, already mortgaged, in breach of the requirements for Registration by the Museums & Galleries Commission, and ­ pace the University of Edinburgh and the Erskine of Torrie Bequest ­ are thus in danger of being deaccessioned to meet obligations entirely unrelated to the financial prudence of the museums caring for them.

Today an increasing number of museum collections in the UK live dangerously, for as long as they trade profitably and their legal owners remain solvent; and the Chatterley Whitfield Mining Museum debacle[1] has demonstrated, with uncomfortable clarity, that in the event of a museum in the UK becoming technically insolvent and unable to continue trading, its collections ­ although vested in trustees ­ are liable to be treated as convertible assets and seized by the liquidator and auctioned to meet its debts. The need to trade and adopt policies designed to attract ever-larger numbers of paying customers sucks these museums into a black hole of debt, all too often secured by their unprotected collections, while these institutions are exposed increasingly to the vagaries of fashion and economic downturns. Inalienability of public museum collections is a complex issue within the existing legal and charitable framework of the UK, but recognition that those collections are the objects of their trusts and not merely assets able to be converted at will for other purposes will be a step in the right direction.

Note

1. 1.

   Founded in 1979, the Chatterley Whitfield Mining Museum was set up as a registered charity which was also a company limited by guarantee. The Trustees of the Museum voted in August 1993 to go into voluntary liquidation and company law was held to take precedence over the charitable status of the Museum. With the exception of the British Coal Collection, the collections were considered part of the assets of the company and were sold by the liquidators. (See "University and foundation collections and the law", Museum Management and Curatorship, Vol. XIII, 1994, pp. 375-9.)