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The Ofili Scandal at the Tate

Is Serota Dead in the Water?

by CHARLES THOMSON

The Tate is still embroiled in what has been termed by The Independent newspaper "one of the biggest rows in its 100-year history". The flak began to fly a month after the Tate made the triumphant announcement in July 2005 of a new major acquisition, The Upper Room, by former Turner Prize winner Chris Ofili. It is a purpose built room made from walnut by architect David Adjaye housing thirteen Ofili paintings, each of a different colour-themed rhesus macaque monkey and based on (but not intended to insult) the biblical Last Supper. The Mayor of London, Ken Livingstone, is rather more phlegmatic than the former Mayor of New York, Rudolph Giuliani, and didn’t utter a squeak about the lump of elephant dung adorning each primate apostle.

The Upper Room was the trumpeted centre piece of a major rehang of Tate Britain, sponsored by BP (formerly "British Petroleum", now rebranded as "beyond petroleum"), whose products and services "contribute to a better quality of life" (except for those living in large areas of the Brazilian rain forest). The backing of a sponsor so keen to draw a PR veil over certain of its activities now seems ironically apt.

There was one thing the Tate failed to mention in its successful media presentation and certainly none of the press reports picked up on it at the time. I only noticed it by chance on the Tate web site: Ofili was a Tate trustee.

Furthermore, when, a few months earlier in July 2004, the Tate had launched its Building the Tate initiative, stating that they did not have sufficient funds to buy contemporary acquisitions and appealing for artists to donate work, Ofili had enthusiastically backed this with an article in The Guardian newspaper. It is now apparent that at the same time a secret fund-raising drive was still taking place at the Tate to buy his work for £705,000 (negotiations had started after the work was first exhibited in 2002).

The Freedom of Information Act was implemented in the UK in January 2005. I applied under it for trustee minutes relating to the purchase, which I was sent, and the price of the work, which the Tate initially refused to divulge. The Tate’s reliance on an entrenched tactic of autonomy and secrecy turned a PR difficulty into a PR disaster, as the story was dragged out over five months in the national press with a series of "damaging" (i.e. truthful and long-overdue) revelations, all pointing to the Tate’s hitherto remarkable lack of public accountability.

This is because it is a QUANGO (quasi-autonomous non-governmental organisation), defined by the government as "a body which has a role in the processes of national government, but is not a government department or part of one, and which accordingly operates to a greater or lesser extent at arm’s length from Ministers". Actually, QUANGOs received a lot of bad press for being a waste of time and public money, not helped by the silly sound of the acronym, so such institutions are now dignified with the term of NDPB (Non-departmental Public Body).

Politicians feel nervous about meddling in the arts, because as soon as they do, they are accused of being censors or out of touch. They much prefer to appear non-censorious and in touch by schmoozing with the right people in front of the cameras. Tony Blair in his early days was notorious for this gambit with "Cool Britannia", resulting in the unlikely presence of Noel Gallagher of Oasis at number 10 Downing Street, with the new Prime Minister showing how in-touch he was by joking with Gallagher about his (that is Gallagher’s) famous cocaine habit.

The Tate, then, along with similar national institutions, is at arm’s length, where the risky business of the arts can do least potential damage to politicians. Responsibility is devolved to a trustee board of the worthy, who are responsible for the conduct of the institution. Trustees at the Tate serve four years, and then the Director, Sir Nicholas Serota, along with the trustee Chairman, helps to select a new trustee, who is finally appointed by the non-censorious Prime Minister (although the distinctly meddling Margaret Thatcher once blocked a trustee appointment on political grounds). The Director serves for seven years, and is then re-appointed (or not, as the case may be) by the trustees. Does this begin to sound a little incestuous? Wait–the Director then recommends that the trustees’ work is accepted into the Tate collection. Three of the twelve trustees are normally artists. All artists trustees during the directorship of Serota have had work bought or accepted through donation.

If something is amiss at the institution, the trustees are responsible for addressing it, but there are external supervisory authorities also: two of them to be precise. The Tate is a charity, so it comes under the remit of the Charity Commission. It is also a NDPB so, somewhat contradictorily, it does ultimately come under a government department, in this case the DCMS (Department of Culture, Media and Sport), although the whole idea of the NDPB trustee set-up is that the government doesn’t have to get its hands dirty or take the blame: that’s what the trustees are there for.

The Charity Commission were quick off the mark and have been holding "discussions" with the Tate, although they stress this is not with a view to an enquiry. There is a good reason for this. The Tate is not just a charity, but, because of its dual affiliation, it is also an "exempt" charity, which means that the Charity Commission does not have its full range of normal powers, including, for example, the "power to institute inquiries", although it can "provide advice". Something of a muzzled watchdog then. It can "take legal proceedings with reference to a charity", although how it can be expected to do this without the power to institute an enquiry, or even the "power to call for documents" would be best answered by Alice in Wonderland.

Not to worry, the DCMS also has jurisdiction. In the early days of the "Ofili scandal" Serota wrote a pre-emptive letter to Dame Sue Street, the Permanent Secretary of the DCMS to tell her that the press might stir up some trouble about the purchase of The Upper Room, but that everything was in order as Ofili had left the room while the decision was made. You might have thought that Dame Sue might have had her curiosity aroused by such a letter, with the hint of guilt as its motivation. You might have thought that at the very least she would have enquired as to the ramifications of the trouble Sir Nicholas was concerned about. No such thing. She replied intrepidly that she had total confidence that everything was in order as Ofili had left the room.

However, things moved on apace, and more and more dubious aspects of the purchase created more and more press stories (I got up to 50 cuttings, then stopped counting). I sent my own report to the Charity Commission and to the DCMS. The Charity Commission informed me of their "discussions with the Tate", and were at pains to point out they were "not undertaking a formal evaluation with a view to opening an enquiry". So it’s back to the DCMS again then. How will they be investigating the matter? Wait for it. Dame Sue is leaving no stone unturned. She responded, "I am keen to see the Charities Commission’s conclusions and what lessons, if any, we can draw from that for the future."

Thomas Hoving, the former Director of the Metropolitan Museum of Art in New York, didn’t have much trouble seeing lessons in the purchase of a trustee’s work and was fairly unequivocal in describing the conflict of interest as "staggeringly obvious". He added, "to think they thought there’s not even a perception of a conflict … For goodness’ sake, it’s so obvious." The official DCMS guidelines for trustees are equally unequivocal: "no-one should use, or give the appearance of using, their public position to further their private interests. This is an area of particular importance, as it is of considerable concern to the public and receives a lot of media attention." The trustee minutes show that Serota and the trustees were quite clear that they were flouting these guidelines, but were willing to take the risk.

There is a member of the government with particular responsibility in this area. He is David Lammy, the Minister for Culture in the DCMS, who, as it happens, was guest of honour at last year’s Turner Prize. He has refrained from intervention in the Ofili dispute so far. His office wall displays an artwork–presumably a favourite–borrowed from the government’s art collection. It is Afro Lunar Lovers by Chris Ofili.

Serota has proved himself somewhat cavalier about rules. In December 2004 he applied for a grant towards The Upper Room purchase from the Art Fund charity (also known as the NACF or National Art Collections Fund) and signed a form stating that there was no prior commitment to purchasing the work–a condition of grant application. In fact eight months earlier the Tate had paid an initial installment of £250,000 towards it. A letter from Ofili’s dealer, Victoria Miro, was received at Serota’s office on 5 April 2004 thanking him for the money. He has blamed this wrong application on "a failing in his head". What the hell does that mean? The obvious answer is "lying and thinking no one would ever find out", which at that time with Tate’s bastion of secretiveness would have been the case. The Freedom of Information Act changed the rules and came as a rude shock (Chris Hastings of The Sunday Telegraph used it relentlessly to find out about the Art Fund and other information). Michael Daley of pressure group ArtWatch UK had also asked awkward questions about the grant.

Serota acted swiftly when he realised he had been caught out, and wrote to the Art Fund offering to refund the money. They magnanimously accepted the application had been a "genuine mistake" (!) and said the Tate could keep the money after all. The Chairman of the Art Fund is David Verey, who is also Chairman of the Blackstone Group "a leading global investment and advisory firm". Verey was appointed Art Fund Chairman in 2004, prior to which he was–wait for it–Chairman of the Tate trustees, in which capacity he had endorsed not only the Ofili purchase but also that Serota should seek external funding. However, the Art Fund stated their decision represented no conflict of interest, as Verey was not in the room while it was taken.

This game of musical chairs continues with other Art Fund trustees, including Professor Michael Craig-Martin, who was previously a Tate artist trustee in the same position as Ofili of having his work bought while he was on the Tate board. William Govett, another Art Fund trustee, was also a Tate trustee during Serota’s directorship. The Hon. Felicity Waley-Cohen is an Art Fund trustee who has been a serving trustee of the Tate Gallery Foundation since 1987, and was Founder Chairman of Patrons of New Art; she is listed in the Tate Report (2002-4) as a member of the Tate International Council. Jon Snow, the news presenter for Channel 4 television, is a current Tate trustee and a member of the Art Fund’s Committee of Honour.

Holders of public office in the UK are required to follow the Nolan principles. The first of these is selflessness. These principles have also been brushed aside as if they count for nothing. I wrote to Ofili and pointed out that he chose to accept public office and the duties attendant on it. I pointed out that if he was genuine about asking artists to donate work, then he should set an example by refunding the money for, and hence donating, The Upper Room, apparently his "most important" work. If the Tate is reliant on donations of work, then it is up to a trustee to set the example that the best work should be donated. I have not received a reply from him.

Stuckist artists demonstrated about the Ofili acquisition outside the Tate on the occasion of the Turner Prize last December. At one point Serota approached us (he is a very approachable person, to give him credit) and I made the point that Ofili should donate the work. Serota looked appalled and said it would cost Ofili "£300,000/£400,000". It was obvious that Serota has existed in the bubble of an elite and privileged art world for so long that he has values quite out of touch with the majority of artists, 40% of whom earn less than £5000 a year. Ofili’s auction prices have doubled since the announcement of the Tate’s purchase (from 1998-2004 they actually sank by 24%). His auction record is now £550,000 ($1,000,000) for a single painting, achieved at Phillips, de Pury & Co in New York on 12 May 2005.

The guaranteed boost to Ofili’s career and prices, from the Tate’s major endorsement of him, raises another issue. Over half of the purchase price for The Upper Room came from five benefactors. Before you feel a warm glow that there is redeeming altruism in this business, you should know the Tate minutes record that these five (anonymous) individuals were also simultaneously purchasing their own private Ofili work. Were such an activity to be translated into City terms it would be deemed "insider trading", which is a criminal offence. It seems incredible that a public body would knowingly enter a transaction of such dubious ethics. But then, as Robert Hiscox, a major art insurer, has pointed out, art is "the last unregulated financial market".

It is also now known that a trustee’s partner bought an Ofili work after the decision to purchase The Upper Room was taken but before it was publicly announced. Serota has said this was not taking advantage of privileged information as the Tate’s purchase of The Upper Room was "common knowledge within the art world" (although not my part of it). Shortly before this claim, the Tate Chairman, Paul Myners, had written to me with a completely contradictory statement to explain that the reason even a mere mention of The Upper Room purchase had been omitted from trustee minutes on the Tate web site was that it was "confidential or commercially sensitive".

As Serota assures us that this "confidential or commercially sensitive" information had become "common knowledge"–to the people in the art world with the right connections, that is–it has to be asked whether such "insider" insight played a part in Ofili’s $1,000,000 auction record in May 2005, i.e. two months before the public announcement of the purchase of The Upper Room. The Painting Afrodizzia was sold by Charles Saatchi and bought by Todd Levin, the curator for collector Adam Sender of Exis Capital. Underbidders included Manhattan dealers John Good and David Zwirner, who represents Ofili’s work in the States.

The Tate says whatever suits it at the time to get it off the hook, blithely regardless of contradicting itself. In June 2003 Serota said the price of The Upper Room "would have to come down". It didn’t but he now claims the same price is a bargain. The trustees justified the purchase of a trustee’s work on the grounds that it was "unique", yet the Head of Legal initially refused to divulge the purchase price in case this hampered Tate buying "similar" works in the future. Serota has claimed there was no conflict of interest in the purchase as Ofili took no part in the proceedings, yet a curators’ report for January 2003 stated: "in discussion with the artist and his representatives, a joint acquisition is being negotiated" and in the January 2003 trustees minutes Chairman David Verey said, "negotiations with Chris Ofili would continue".

Serota seems to have been rather aggravated by the conversation during the Stuckist demo (I thought at one point he was either going to hit me or burst into tears). That evening during the Turner Prize giving he launched into an unprecedented speech to defend the purchase of Ofili’s work on the grounds that it was a great piece of art and that therefore the Tate should not be censured for acquiring it. This quite disingenuous approach successfully avoided all the real objections to the purchase by pretending that the quality of the work was the central issue when it hadn’t even been a previous subject of debate.

The same argument was trotted out two days afterwards in a letter to The Times by Lord Smith (formerly Chris Smith, Culture Minister), who puffed that any talk of conflict of interest was "a nonsense". A leading charities barrister, Christopher McCall QC, wrote dryly three days later: "Lord Smith of Finsbury’s valiant attempt to defend the purchase by the Tate board of a work by one of its members suffers one defect. It ignores the law. As any competent adviser will confirm, trust and charity law lays down an absolute rule that a trust cannot enter into a transaction with one of its trustees unless special authority is to be found."

The Charity Commission states plainly on its web site, "The law states that trustees cannot receive any benefit from their charity in return for any service they provide to the charity unless they have express legal authority to do so." McCall concluded his letter, "If Lord Smith is right, expediency is to be preferred to the acceptance of the principles of the law. I do not accept that the public interest is well served by such an attitude even if I recognise that it is one which has an appeal to an overbearing executive."

If it is an overbearing executive, it still has to be endorsed at the end of the day by its board of trustees. These include Helen Alexander, Chief Executive of the Economist Group; Victoria Barnsley, Chief Executive Officer for HarperCollins UK; Melanie Clore, Deputy Chairman of Sotheby’s Europe and Co-Chairman Worldwide of Sotheby’s Impressionist and Modern Art Department; Howard Davies, Director of the London School of Economics; Jennifer Latto, the Adviser on Higher Education to Government Office for the North West; and John Studzinski, a member of the Group Management Board, and Chief Executive and Co-Head of the Corporate, Investment Banking and Markets Business at HSBC Holdings Limited.

Studzinski (widely known as "Studs") secured Prince William’s work experience placement at HSBC, and also HSBC sponsorship for a Frieda Kahlo exhibition at Tate Modern "because we see this as a commercial opportunity". He claimed that not acquiring the Ofili work "would demonstrate negligence". Barnsley urged it should be acquired "come what may".

Paul Myners was appointed a trustee in 2003 and succeeded David Verey as Chairman on 26 March 2004 (i.e. was Tate Chairman at the time of the Art Fund application). Myners is also Chairman of Marks and Spencer, Guardian Media Group and Aspen Reinsurance, a member of the Court of the Bank of England and a non-executive director of the Bank of New York. He has compiled reports for H.M. Treasury, commended by Gordon Brown, the Chancellor of the Exchequer, notably Institutional Investment in the United Kingdom (2001) and The Governance of Mutual Life Insurers (2004). In the first of these he made the point that "a regime based on transparency and disclosure … would encourage trustees to think carefully about whether their investment strategy is sound. Making it publicly available would expose it to public scrutiny." He also lectured the City, "Empires, religions and monarchies have all collapsed where there has been a lack of openness … It is a form of soft corruption which encourages an outcry against them."

It is a lack of openness and response to the public which pays for it that has generated the alienation and lack of sympathy which the Tate now suffers. Serota has been Director for 18 years and has essentially run the Tate as a private fiefdom. He is an art fundamentalist with a zealot’s single-minded vision and conviction. The trustee board which should be composed of a genuine variety of outlooks has been moulded over the years to a consensus group. Serota found older artist trustees (such as Antony Caro) too independent and outspoken, and concluded "it just seems to work better when you have artists who are a new generation, or indeed erring on the younger side, really"–Chris Ofili being an example of the latter.

Current Chairman Paul Myners is a classic example of artspeak by rote, but merely displays how out of touch he is (with a current resurgence of painting in the country, not least in Charles Saatchi’s new show The Triumph of Painting), when he pronounces "painting is the medium of yesterday", though this is doubtless music to the ears of Serota, who plans more space for video art on the basis that public interest in it is "greater than ever before". It may be, but the BBC2 Culture Show still found that only 2.8% of the population are interested in it. Anything in contemporary art which has popular accessibility–and figurative painting in particular, especially if it has any element of the "traditional"–is an anathema to Serota. Art must be "difficult", to use his term.

My objection is not to the collection of "difficult" work, or even for that matter acquisition number T07667 by Piero Manzoni, Artist’s Shit, consisting of a tin of the same, though I think the price was rather steep at £22,300. My objection is that the Tate’s (i.e. Serota’s) obsession with such work results in a failure to acquire a representative selection of contemporary artistic practice. This subjective selectivity is exactly the mistake made by the Tate in the early twentieth century, which has led to unfillable gaps in the current collection. Serota is sure that his predilections will be vindicated by the future, as were the past Tate Directors whose views we now regard as ridiculously narrow. Serota thinks he is avoiding the mistake of the past, when in fact he is repeating it.

He is a man of outstanding qualities, single-minded, determined, capable, courageous and to a large degree selfless. The monument to his drive is the successful and remarkable creation of a huge new museum in London, Tate Modern. For a time it was difficult to challenge him, when he pulled off one of the few successes amidst other Millennium fiascos. However, the same qualities that led to his greatest triumph are creating his greatest disaster, and his current acquisitions policies are leading to a ruined cultural legacy for the future. It would take a remarkable transformation for him to change tack at this stage, but it is essential that change takes place at the Tate, if necessary by finding a new Director, who will provide, as Stephen Deuchar, the Director of Tate Britain promised in 2000, a "comprehensive overview".

Michael Daley of ArtWatch UK commented to me recently that flyers shot down over the Pacific in World War Two were told, "don’t bleed"–it’s OK in the water, as long as the sharks don’t smell your blood. Serota’s been shot down and he’s certainly bleeding. Maybe Dame Sue and the Charity Commission passing the buck between them (and the Culture Minister doubtless avoiding it altogether) will rescue him this time, but his current policies will continue to have enemies gunning for him, and he has provided them with plenty of ammunition.

CHARLES THOMSON is Co-founder of The Stuckists. He can be reached at: stuckism@yahoo.co.uk

More on the ‘Ofili scandal’ can be found on www.stuckism.com