Tate’s BP decision: Ethics, transparency, law and processJun 10, 2015 • 1:37 pm
Assessment of minutes and processes of the Tate Ethics Committee based on documents obtained through Freedom of Information Act requests.
By Tim Crook, Head of Media Law & Ethics and Radio in the department of Media & Communications, Goldsmiths, University of London. Holding the appointment of Reader in Media and Communication at Goldsmiths and Visiting Professorship in Broadcast Journalism, Birmingham City University.
This article is part of ‘Mind the Gap: expert evaluations of Tate’s ethical decision-making over BP’. For more expert comment and a summary briefing, see Mind the Gap. To view the original documents from Tate’s Ethics Committee (pdf), click here.
Conflicts of Interests and affiliations.
I am not a member of any political or campaigning group concerning environmental affairs, fossil fuels and the ethics of multinational global corporations. I have no associations with the Tate whatsoever.
These are varied but essentially they are constituted as an advisory function to analyze, discuss, and make recommendations rather than decisions within a body – whether public or private – in its aspiration to be good and to make the right decisions in the context of morality. My observations are an expression of subjectivity, as humanity has not established any benchmarks of good practice or regulatory infrastructure on ethical decision-making.
Secrecy is an anti-democratic phenomenon and the very fact that considerable effort has had to be engaged to gain access to the documents setting out the Tate’s Ethics Committee analysis, discussion and recommendations in relation to its BP sponsorship could be argued to be unethical. It is not very moral for a public body to represent its ethical credentials and at the same time not respect the dimension of transparency. Such a policy undermines confidence in ethical integrity. Of course, transparency and openness would be impractical and disproportionate if absolute. The redacting and withholding of any information on the grounds of privacy, individual dignity, and business confidentiality will only be tolerated in the context of trust in the maximum disclosure of everything possible in relation to the Ethics Committee process.
This should always be structured with the purpose of generating public confidence in the integrity of the process. As Ethics Committees are usually advisory, the public or private body should promote the maximum opportunity to make recommendations that speak ‘truth to power.’ The power in any body of this kind rests in its senior executives. Apart from the presence of four Trustees, Tate’s Ethics Committee meetings are dominated by corporate executives. At the meeting held on 6th May 2010 executive presence was equal to that of the Trustees who should be seen to represent the conscience of the Tate as a public arts institution.
I am not so sure that unpopular and unpalatable truths in this context have a maximum opportunity to be harvested with the presence of so much executive power. It could be argued that corporate sponsorship executives should not be on committees making ethical recommendations about corporate sponsorship. They should be available to offer reports or even make representations as guests or quasi-witnesses.
The 9th person present at the meeting is a ‘Co-Opted member’ of the Ethics Committee – Jules Cher QC, a distinguished lawyer.
Ethics and laws do have overlapping concerns though much jurisprudence and academic debate has endured about the relationship between ethics and law.
However, the risk of having a professional lawyer playing such a key role (a potential casting vote), means that focus and direction of discussion could be considerably influenced and confused by confirmation that what is not against the law is moral.
That is, of course, not necessarily the case. The field of ethical decision making is blighted by the problem of damnum sine injuria– the temptation to ‘get away with it’, to be a bad person and make a wrong decision so long as it is not unlawful.
I am not suggesting in any form, explicitly or implicitly, that this was or could have been the case. I cannot speculate about things I do not know and ignorance is somewhat fostered by large black areas of redaction. There is nothing in the minutes to suggest anybody named and involved in this process has acted in bad faith, or indeed failed to respect the rule of law. Everything suggests those involved are good people and eager to make the right decisions.
The very existence of an Ethics Committee is a worthy and virtuous aspiration recognizing that the Tate as a public arts organization has ethical obligations to human society.
However, the confusion between a legal advisory process and ethical advisory process is rather well encapsulated when it is minuted that Mr Sher at 2.4 ‘drew the Committee’s attention to the legal requirement for a charity to be predisposed to accept funds, where their origin was known to be legal, as was the case with BP, with reference to Harries v The Church Commissioners for England .’
I cannot help thinking that at this point the Ethics Committee ceased to function in its role concerning ethics. Non professional lawyers are inevitably going to concentrate their pragmatic minds when offered an argument that it would unlawful to refuse BP sponsorship.
I did not see any counter-legal arguments, or evidence, indeed, of the ethical value of such a case law judgment.
- The instrumental process by the Ethics Committee.
I cannot offer an authoritative opinion on whether the committee made the right decision according to ethics. This is because redaction conceals significant parts of the minute content. But I can observe that the committee’s process of fact finding has not been consultative. It has not sought out either by invitation to submit a report or make a representation those campaigning groups who have protested at Tate’s association with BP.
The Ethics Committee has shown due diligence in investigating BP’s international profile in respect of protection of the environment. It has considered information indicating BP’s willingness to invest in and research non-fossil fuel energy.
The Committee has understandably focused on media coverage of the protests. This is an evaluation of the quality of Tate’s moral reputation as a result of accepting BP sponsorship. However, measuring the quantity of media coverage is a very instrumental exercise. It does not address the intrinsic morality of taking the sponsorship. And that is, in my opinion, what an Ethics committee should be doing. The preoccupation with media coverage could be confused with the exigencies of a branding or public relations and marketing committee.
The minutes state at 4.12:
‘Taking a moral stance on the ethics of the Oil and Gas sector remains outside of Tate’s charitable objectives.’
With respect, is this not an abnegation of the purpose of having an Ethics Committee? The ethics of the Tobacco industry, of pharmaceutical companies such as Distillers when it manufactured Thalidomide, of the arms industry, and indeed of business sectors that can have a measurable impact on social, material and environmental reality, are relevant.
Tate Ethics Committee acknowledges this very fact with its understandable pre-occupation with the US Federal state investigations into the Gulf of Mexico oil spill.
There appears to be a desire to distinguish between the moral significance of a criminal and civil prosecution.
I apologise if I have perceived wrongly. If I have not, I venture to suggest that the jurisdictional nuances of prosecuting BP for alleged civil and criminal wrongs do not make any difference to the ethical issues arising. Burden of proof and nature of remedy are not the trump cards in a trial of moral virtue. Again they are procedural and instrumental concerns rather than intrinsic values to be engaged with.
- The decision made.
In my opinion, at 4.14, the committee adopted a utilitarian methodology: ‘The Executive view is that currently the benefits of BP’s support for Tate far outweigh any quantifiable risk to our reputation.’
With respect, this process of thinking is philosophically, intellectually and ethically rather simplistic – verging on the naïve. I think the subject issue merits fuller examination and exploration of a deontological and virtue ethical methodology.
Less may be best in another context, but oversimplifying a fundamentally complex and challenging issue in the 21st century is, in my opinion, not an ethically sound approach for such a prestigious and important public arts institution.
Sincerely and respectfully,
Tim Crook. Tuesday 12th May 2015.