In May 2013, Spencer Compton, 7th Marquess of Northampton, challenged the decision of Northampton Borough Council to put up for sale a statue, sculpted around 2400BC, of an Egyptian official called Sekhemka. The basis of the challenge appears to have been that, under a deed executed in 1880, his ancestor, the 4th Marquess, had made a grant of his collection including the statue to the Mayor, Aldermen and Burgesses of Northampton (collectively known as the Corporation):
“…on condition that … the Corporation… for ever hereafter exhibit the same freely to the Public…and at no time dispose of any part…in default whereof at any time the said collection shall revert and be restored to the Marquis his heirs or assigns…or be disposed of as he may direct…”
Time passed and the Corporation, now statutorily re-established as the Council took the view the statue, which was not specifically mentioned in the deed of grant, was the subject of an absolute gift leaving the Council free to deaccession it should it so wish.
The negotiations which followed the 7th Marquess’s challenge have neverbeen made public and neither the Council or the Marquess has made comment. However, the Art Newspaper reported in April 2014 that a deal had been reached to split the sale proceeds, with the Marquess receiving 45% and the Council receiving 55%.
Gifts on condition are governed by old case law which generally places the donor at a disadvantage. It has been said that it “is repugnant to the essential nature of an absolute gift to attempt to deny the new owner the fundamental attributes of ownership”. However, throughout the nineteenth century it was possible, using appropriate language in the deed of grant, to limit the ownership of personal assets so as to give away an artefact upon a condition which might cut the gift short. If any act forbidden by the condition subsequently took place then the original grantor, or his heir, had the right to determine the existing interest and resume ownership.
In law, this is sometimes called a condition subsequent and will be void unless it can be seen from the outset precisely and distinctly what specific events would trigger a right of forfeiture. A condition subsequent would also be void insofar as it is contrary to public policy or purports to remove the right of the donee to dispose of the gift.
It seems likely that the 7th Marquess was successful in his opposition to the sale of Sekhemka on the grounds it might have been the subject of valid limited gift and if the Council had deaccessioned it, the statue might no longer have been theirsto sell. On 10 July 2014, Sekhemka was sold at auction by Christies, London, for a record-breaking £15.8m. The sale provoked comment and criticism from the Arts Council, Museums Association, Egyptian Government and local stakeholders that the Council had contravened ethical standards by selling the statue. The Egyptian Government had even entered into last minute talks with Christies in an attempt to delay the sale. On 1 August 2014, the Arts Council ruled that the process leading to the sale of Sekhemka contravened museum accreditation standards. Two museums managed by the Council, The Northampton Museum and Art Gallery and Abington Park Museum have since been removed from the Accreditation Scheme and will be excluded from all future participation for a minimum period of five years, including rendering them ineligible for a wide range of grant funding options, until at least August 2019.
Scott Furlong, director of the acquisitions, exports and loans unit at the Arts Council said: “It is always hugely regrettable when we have to exclude a museum from the Accreditation Scheme... However, it is equally important that we are robust in upholding the standards and principles which underpin the scheme and are shared by the vast majority of museums…I am confident that the museums sector and wider community will share our dismay at the way this sale has been conducted and support the decision……There is a very real risk that this trust, and particularly that of potential donors and funders, will be seriously undermined if disposals from public collections are seen to be driven by financial considerations and in breach of our professional standards and ethical code.”
The Council is considering appealing the decision.
Public collections which are constituted and governed by statute such as the British Museum (British Museum Act 1963) and the National Gallery, the Tate Gallery, the National Portrait Gallery and the Wallace Collection (Museums and Galleries Act 1992) are prevented from deaccessioning pieces from their collections by legislation. In contrast, elected local authorities are empowered to deaccession items as they consider necessary, subject to the ethical code of the Museums Association. In 2007 this code was relaxed, precipitating an increase in the number of local authorities wishing to exercise this power.