As the long-debated new Arts Bill passes into law, Belinda McKeon asks if it leaves future interpretations too open, especially in relation to Government arts policy.
After a lengthy period of debate and discussion, the Arts Bill is expected to finally pass into law this week. Back in 2000, when the Bill took its first guise, it was as a series of questions posed by the then Minister for the Arts to the arts sector, as a discussion document in which Síle de Valera strongly queried the role of the Arts Council, the reach of the Minister, and the relevance of the arm's-length principle that had long governed their dealings with one another.
Three years have passed. In April 2002, de Valera's proposed Bill was published, and her successor to the arts portfolio, John O'Donoghue, has had more than a year to consult and debate his amendments to that Bill. So it is unfortunate, to say the least, that the end result leaves the sector juggling almost as many questions as did the preliminary document.
This Bill does say something significant about the relationship between the Minister and the Arts Council, but what, precisely? Does the fact that Section 24 confirms the Council's independence only as a grant-dispenser mean that its independence is compromised in all other functions? Does Section 5 (3), which states that, on all matters other than individual funding decisions, the Minister may give a direction to the Council requiring it to comply with his policy or that of the Government, represent a curtailment of the Council's recent quest to establish itself as a development agency rather than solely a funding body? And what exactly is the policy of which this section speaks - is it necessarily broad, something along the lines of a cultural policy, or does it have the freedom to narrow its focus? Or, indeed, does this section refer to a much more general Government policy? The answers to all of these questions lie not in the Bill itself, but in its future implementation.
There is a concern, however, that each question may have more than one possible answer, that the Bill's provisions may lend themselves as much to individual interpretation as to lawful implementation. O'Donoghue may have deftly neutralised some very crude Departmental designs on power in the original Bill - a severely pruned Council and three new permanent committees, chiefly comprised of Ministerial appointees, one of which, the standing committee on the traditional Irish arts, met with deafening censure from many quarters in the arts sector and seen as the partisan instrument of Comhaltas Ceolteoirí Éireann director Labhras O' Murchu, also a Fianna Fáil senator. But the Minister has retained the Bill's third assault: sections 5 and 9, which significantly check the arm's length relationship which has long existed as a general principle between the Government and the Council.
Insisting that the independence of the Arts Council and of artistic expression will remain uncompromised, and that the Bill is merely a legislation of public expenditure on the arts, in line with the demands of a democratic system of accountability and transparency, the Minister has sought repeatedly to assuage concern about this aspect of the Bill.
But concern remains: in the arts sector, in the media, on the Arts Council itself. The chairman, Patrick J. Murphy, worries about "undue influence exercised on future Councils by Ministers for the Arts (which) would need to be watched closely and resisted".
A member of the Council, Prionsias Mac Aonghusa, says the new Bill "gives more power to the Minister of the day than ever before", no matter how much the Minister protests to the contrary. "Much depends on the personality of the Minister and the desire of the Department. And we don't know who the Minister will be in three years' time."
This Bill mirrors current feeling in the arts community - disillusion with the Council, and a cautious move towards faith in O'Donoghue, but will it suit arts community for the next couple of decades? There is a consensus that, while the present Minister may have no intention of requiring the Council to comply with questionable or restrictive policy, there is no accounting for the circumstances of the future.
Former chairman of the Council Ciarán Benson does not hesitate to sketch the worst-case scenario.
"The importance of the arm's-length principle is one that has to be looked at in a historical perspective," he says. "Its importance is an outcrop of the misuse of art in the early 20th century, and I am talking about forms of totalitarianism and fascism. The lesson is that the arts need a sensitivity which is more likely to be respected in legislation than at the discretion of a politician. This is not fantasy: Berlusconi is an example of how easily and how swiftly free expression can be cancelled. The legislation should protect against political incursion of this kind."
From the director of the Arts Council, Patricia Quinn, the reaction to the Bill is far less dramatic. At every turn, Quinn has put an optimistic gloss on the consequences of section 5 (3), arguing that it is merely a legislative consolidation of functions the Minister for Arts has always carried out - sometimes on the Council's request, as in the initiative to develop policy for public art - referring faithfully to O'Donoghue's assurances on the matter, and stressing the value of having a Minister at Cabinet level to legislate on the cross-departmental matters so germane to the formulation of a cultural policy.
Behind this calm, however, may well lurk some drama; a refusal, on Quinn's part, to appear cornered into total policy obedience by the Department she has tried to play by encouraging it to develop a framework to guide public policy on the arts. Or a determination to stay onside with that same Department. Or, in the face of accusations that the Council did not spot the threat to autonomy quickly enough, a need to portray a Council which has checked the facts and is composed about them.
In fairness to Quinn, the evidence is there, in early submissions, that that threat had been spotted by the Council, and, in any case, the loaded questions asked in the discussion document had made clear that de Valera had set her eye firmly on the reins. Even the sharpest of responses from the Council, then, might have made little impact on her plans for the arm's-length principle.
One source suggests that, in its pre-publication format, the Bill was, in fact, far more devastating in terms of the control it afforded to Government, and that the lack of clarity in sections 5 and 9 - the sections which seem to swoop in on Council autonomy - may in fact be the effect of clever fudging by a team of civil servants who understood the need to limit the Minister's power while giving the impression that they had unleashed it.
However, that lack of clarity in the legislation is still, in itself, potentially damaging. We can only hope that the policy with which the Council (and, indeed, other bodies, including local authorities' arts officers) will be obliged to comply will be broad cultural policy - though the steady diminution, in successive portfolios, of the Department's cultural remit, inhibits its powers in the creation of such policy, and raises the uneasy question of whether future, further diminution in the arts portfolio could leave the Council and other bodies with a severely impoverished policy to implement. In Britain, the arm's-length principle remains in place between the Arts Council and the government because the policy with which the Council is obliged to comply is that of "wider Government objectives", according to a spokesman.
And, while the Bill does not allow for exploitation by an unscrupulous Minister in the future, neither does it protect against it. This Bill does not enshrine the arm's length principle, it makes a concession to it, futhermore, the Minister has indicated, during Dáil debate, he will preserve the larger principle because it represents "good custom and practice" is not enough.
For any principle to work consistently and legally, the precise workings of that principle need to be set out in law. Instead, this Bill provides a loophole, inviting its readers - and that includes future Ministers - to interpret what is meant by the principle, and by Arts Council autonomy, and to legislate on the arts accordingly.
To get an idea of what might happen as a result, we don't even need to go back to Soviet Russia; some of the cultural views expressed during Dáil debate on the Bill give cause enough to shudder. Sinn Féin's Aengus O'Snodaigh, usually a relatively informed and imaginative spokesman on the arts, tended to descend into petty, obstructive rants when it came to the question of the Bill's consideration of the Irish language; one of his amendments sought that Council members should be fluent Gaelgoirs, another that the arts should be promoted bilingually at all times.
Imagine if, in the future, in what will may well be an Ireland even more culturally diverse than today, such a perspective were to inform the formation of policy for the arts. Unless the scale of fluency in Irish were to take an almighty leap between now and then, the restrictiveness of the first condition, and the expense of the second, would create serious headaches for artists and administrators. "There is a danger that an excessively prescriptive Arts Council could work in tandem in the future with an excessively conservative Government," says the poet Theo Dorgan, who compiled a report from the 239 submissions received in response to de Valera's 2000 discussion document. "I feel that autonomy is the intention of the present Minister, but I am not entirely convinced that a malign Minister in the future could not interpret it in a hostile way."
Unlike the area on which it legislates, the Arts Bill, and the Act it creates, should not be a playground for interpretation. Nor should it depend on trust; from unseen civil servants to unknown future Ministers, this legislation, like all legislation, engages too many players for trust to be an option. Colm O Briain, himself a former director of the Arts Council, admits to worry at the apparently covert nature of policy direction provided for by the Bill. "If I had had an input, I would have suggested that policy issues should first be raised on the floor of the Oireachtas, and at the very least, with the Joint Committee. The Minister would tell them what policy he envisioned, and discuss it, before deciding that it was a policy matter. Then it would be kosher for the Minister to direct the Arts Council. But the Bill and the Act is not clear enough on this. It does not say. It seems that the Arts Council will know policy only when they get the letter."
For a Bill that appeared to have its origins in an openness to consultation, then, this is an insipid, inward-looking result. That the present Minister has shown some sympathy for lobbyists may mean that the dangers of this casual approach to consultation will not become evident for some time. In the meantime, those lobbyists could do worse than to bear in mind the example of where skating too close to the Department would appear to have landed the Arts Council.
"The greatest threat to the arm's-length principle," warns O Briain, "is the arts sector itself, which is always the first to rush to the Minister when disappointed with the Arts Council's decisions."
It's a sentiment that was echoed in the Dáil by former Minister for Arts, Michael D. Higgins, when he said that artists and arts organisations, far from coming in line with Government policy, should always be as "creatively troublesome" as possible for the Minister of the day. A better test-run for this Bill, and the protestations of the Minister, could hardly be envisaged.
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What else in the new Arts Bill?
Apart from requiring the Arts Council to comply with Government arts policy in matters other
than funding, the new Bill also includes the following provisions:
The Minister shall promote the arts inside and outside the State
Local authorities shall prepare and implement plans for the development of the arts and must take account of Government
policy on the arts when
doing so
The Council will reduce in size from 17 to 13 members; the 12 ordinary members and a chairperson will all be appointed by the Minister. Six members must be male and six female.
Council membership will be on a roll-over basis, with changes after 30 months of the Council's five-year term
The Minister may direct the Council to establish up to three special, non-permanent committees to advise it on whatever matters relating to the arts as
he sees fit.
