Arts Council England (ACE) is changing the draft terms and conditions for its National Portfolio Organisation (NPO) grants. Last week, Arts Professional (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 following a storm of protest on Twitter and concerns being raised across the UK about the implications of the contract on freedom of expression, ACE will now 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.”

Open to misinterpretation

The first hint of a possible change of heart was given 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to restrict organisations from speaking about Arts Council decisions or policies, and/or to allow for funds to be withdrawn if an organisation takes an artistic position that is politically sensitive.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; the other relates to an organisation’s failure to meet project milestones that would indicate that a talent development programme would not be delivered.

This is an edited version of an article originally published by Arts Professional on 24 September 2014