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					Disability Strategy Project Team
Governance

Governance
Discussion Paper – Version 4
Date:                  28 January 2004
Authors                Moya Harris, Tony Panayiotou, Steve Mannix



1       Summary

        ‘govern’

        ‘rule with authority, conduct the policy,
        actions & affairs of (subject) despotically or
        constitutionally’                   Oxford Dictionary

        ‘influence; regulate; manage; supervise; curb’
                                                 Roget’s Thesaurus

According to the above definitions, governance equals power and
control. Disabled and Deaf people are under-represented in
positions of power, particularly in the arts sector. The only
organisations where we have been able to take control are those
which have evolved as disability or Deaf-led forums or agencies.

In some ways there has recently been a reversal of the momentum
created by disability-led arts organisations, with a re-emergence of
organisations working in arts and disability, led by non-disabled
people. There is a lack of clarity in the sector around what
constitutes Disability Arts and disability-led, as well as confusion
around language (some people still refer to work in social service
settings led by non-disabled artists as Disability Arts, for example).
This must be rectified if disabled people are to be given a true voice
within governance of arts organisations.

Disabled People are seldom represented on arts boards or staff
teams generally, despite sustained delivery of Disability Equality
Training in some regions.

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2      Background

Disability Arts emerged as the cultural reflection of disability politics
during the early 80’s. It’s unique activism represented both anger
and frustration at continued exclusion and oppression, whilst
simultaneously celebrating identity and shared experience.
Disability-led arts organisations at first struggled to learn and acquire
skills against a background of lack of formal training opportunities
and the reticence of funders (still alive and kicking) to acknowledge
the principles of self-determination which underpin their
development. There are now in 2004 many well-run and
sophisticated disability-led arts organisations across the country.
Any insecurity and instability arises from the fact that neither the
funding system or mainstream arts sector recognise that they
continue to use non-disabled models by which to assess, judge and
interact with organisations of disabled people and Deaf people. In
many ways it seems the more sophisticated we get, the more
detached we become from the mainstream.

In the mainstream, despite decades of lobbying and campaigning,
many experienced disabled and Deaf people continue to be denied
access to senior management positions, or positions on boards of
directors.

There are several reasons which accumulate to maintain this lack of
representation and control:

   a shortage of Disabled and Deaf people with the appropriate skills
    and experience to lead – either as board members or paid staff
   apathy (at best) or attitudinal discrimination (at worst) by
    mainstream organisations
   insufficient pressure from funders (tick-box mentality) for
    mainstream organisations to be representative

As a consequence, the majority of those disabled or Deaf people with
relevant skills and experience either work as employees of disability
arts forums/development agencies (DAF’s), or as freelance
consultants. Little has been achieved by way of real inclusion or
integration in terms of governance.




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Recently, those arts organisations truly led by disabled people have
come together to begin to address some of the issues, particularly
around skills development. The Disability Arts Network for England
formed in April 2004. This is an important new development for the
sector.

3      Main Section

3.1.   Structures

Before we can fully explore governance, we must look first at the
common structures of arts organisations; and at the reality of who
does the governing ie who really holds the power within. In many
cases, arts organisations have registered as charities, in order to
access funding from trusts and foundations. However, recent
research suggests that many trusts recognise the outdated nature of
Charity Commission law and will fund not-for-profit organisations
regardless of legal structure. Importantly, new legislation also
recognises this issue and during 2004, two new legal structures will
be available to not-for-profit organisations (see below).

Sean Egan, head of Bates Wells and Braithwaite (Solicitor’s) Arts
and Media department writes in Arts Professional:

‘Many arts organisations are also registered charities. The principal
advantages are the tax breaks, rates relief and access to funding.
The disadvantage is the need to comply with charity law. The legal
structure of arts charities can be at odds with what happens in
practice and can give rise to problems.

The usual arrangement for an arts charity is for a company limited by
guarantee to be set up which has members (or guarantors) who are
also the directors of the company. A company having exclusively
charitable purposes and turnover of more than £1,000 will need to
apply to register as a charity and as a result the directors will
automatically be charity trustees.

The significance of being a trustee is that you are subject to charity
law which imposes stringent obligations on the making of decisions
and on how the charity is managed. Trustees cannot be paid for
their work as trustees, though if constitution permits, expenses can
be paid and where individual trustees provide professional services
they can be paid for those services*.

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The net result is that arts charities need to recruit and maintain a
board of trustees who wield the legal powers of the company, when
in practice the artistic director’s vision may be the reason for the
company’s existence. Anyone who has worked in the arts can
appreciate the absurdity of this – the artistic director will propose a
programme of work and will, together with the administrator, have
secured necessary funding for the work, but cannot undertake the
work without approval of the board of trustees.’

(*This is restricted to legal and accountancy services. During 2003
the Charity Commission were approached with the argument that
this should include those disabled people who were specialists in
access and equality, so that board members who were also freelance
consultants in this specialist field could be reimbursed for loss of
earnings. This was refused.)

In late 2004, radical reform is taking place with regard to charity law,
which should be welcomed by most arts organisations. The most
exciting is the creation of a new legal structure – Community Interest
Companies. Although similar to companies limited by guarantee,
they will operate from a not-for-profit ethos, so will be attractive to
those funding bodies who require this and prefer charities (note there
is NO requirement by Arts Council England for arts organisations to
be registered charities). This will also foster a mixed economy of
funding – from commercial sources as well as government.
Crucially, it will allow board members to be paid for both their time
spent on governance, and for any other services they provide to the
arts organisation they are involved with. This could promote much
more artist or user-centred approach to governance.

Secondly, there will be the creation of a single entity - ‘charitable
incorporated organisation’ – which means that those arts
organisations wishing to remain both a charity and company limited
by guarantee can transfer to this structure and negate the duplication
of paperwork to both Companies House and the Charity Commission
each year. More reforms focus on changes to encourage mergers
between organisations.

Importantly, the reality within the arts (as opposed to that of the
voluntary sector as a whole) is that artistic policy and development is
more often determined by staff rather than board, who are more
generally a ‘rubber stamp’ committee. This of course puts the board

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in a vulnerable position should the staff fail in a major way, as board
members individually maintain the legal responsibility. Many arts
charities sought to become companies limited by guarantee in order
to ‘protect’ their trustees, but this does not preclude their liability
should negligence be proved as the cause of insolvency or failure.

Currently, if we are referring to governance in arts organisations and
increasing the participation by disabled people at all levels, we must
include paid employment opportunities as well as voluntary board
positions. The arguments presented in this paper therefore reflect
both.

3.2.   Mainstream

Due to increasing demands being made on arts organisations by the
influence of the Disability Discrimination Act (DDA) - and in order to
tick the boxes on their funding application equal opportunities forms -
mainstream organisations are keen to have a disabled or Deaf
person on their board. Yet rarely do we see paid employment
offered and rarely do we see more than one tokenistic
representative.

The majority of people who have the appropriate skills and
experience are either already involved with their own under-
resourced DAF, or they are freelance consultants where time equals
money. Why should these skilled people be expected to give up their
valuable (and saleable) time without recompense? As a result of this
shortage, mainstream arts organisations make approaches to
individual disabled and Deaf artists or audience members who are on
their mailing lists or in their catchment area.

In few cases have access or training budgets been created to
support the new board members (also the case for employment
opportunities); whilst in several cases the new member finds early on
that there is an expectation for them to be the ‘font of all knowledge
on disability issues’ and provide the organisation with all it requires in
terms of access and equality information and guidance.

There have been incidents where disabled artists have been invited
onto boards, imagining their artistic skills and experience have been
sought, only to find they are lost in a sea of business issues for which
they have no training or experience – and expected to advise on


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access. The experience is frequently disempowering, isolating and
demotivating.

For learning disabled people, the barriers are even greater. The
attitudinal discrimination which exists within the mainstream
precludes the notion that learning disabled people might be valuable
members of boards, even in organisations whose outreach
programmes involve a high percentage of work ‘with’ or ‘for’ learning
disabled people.

Disability Equality Training (DET) for boards is not necessarily the
answer. It can help, but only where salaried staff and board are all
present; work together on an action plan and strategy; appoint
someone to monitor it and review it; undertake DET annually to allow
for changes and developments. For DET to have a long-term effect,
all of the above should be instigated as a funding requirement for
RFOs, monitored by ACE during annual review meetings, with
penalties for persistent failure to comply.

3.3    Disability and Deaf Arts

The introduction of the new Community Interest Company should be
particularly welcome to disability or Deaf-led arts organisations as a
replacement for charitable status. Is it not wholly incongruous to
argue for ‘rights not charity’ and then operate from under a charitable
banner? Again, it means those artists, activists and consultants who
are needed at the heart of those organisations – as board members
to support salaried staff – can be paid for the time they give.

There is unquestionably a shortage of skilled disabled and Deaf
people in the arts sector. Recent recruitment (2003/4) by at least 3
disability-led arts organisations backs this argument. This may be
partially due to the growth of disability-led organisations and also the
‘drain’ of key individuals moving on to other fields or to freelance
careers and this often happens due to the enormous added pressure
of working in a field so closely linked with one’s own experience of
living ie as a disabled person. Investment is urgently needed to
support disability-led organisations to offer placements, new jobs,
apprenticeships, fellowships and youth schemes to encourage more
disabled and Deaf people on to the arts career path, both as paid
staff or voluntary board members.




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Additionally, commitment is required from the organisations
themselves. How many key posts in Disability Arts organisations
have gone to non-disabled people in recent times? If we are losing
ground in our own sector, how can we demonstrate good practice to
the wider arts infrastructure?

Much of this is due to the pressure of needing a person in post to get
on with the work – and the mounting pressures of Service Level
Agreements to contend with if it is delayed. Both funders and the
organisation should be able to take time out to consider ways of
maintaining both output and representation – through
apprenticeships, mentoring or training opportunities – and be
prepared to resource such measures.

The disability-led organisations themselves need to address inclusion
issues for BME and learning disabled people. Notably, the new
Disability Arts Network for England has no members from either
sector, as organisations with people from these backgrounds either
do not exist, or there are questions over their leadership (this is
particularly the case for learning disability arts organisations).

Disabled People need and welcome good allies within the
mainstream arts – that is where the most difficult barriers exist. But
is it appropriate for non-disabled people to lead on work which is
exclusive to disability culture and experience?

4      Project Team Discussion

4.1    Who are the real ‘governors’ in most arts organisations with
       voluntary boards – salaried staff or trustees? Both should be
       representative.

4.2    The funding criteria around disability, diversity and equal
       opportunities in governance (and employment) as it exists
       encourage a ‘tick-box mentality’. What additional criteria can
       ACE introduce and monitor within RFO’s (see
       Recommendations)?

4.3    How can the new Disability Arts Network be utilised to address
       the skills shortage within the sector?

5      Targets


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Arts Council

5.1   Increase resources through developing partnerships (see
      recommendations)
5.2   Increase incentives to RFOs as encouragements (‘carrots’)
5.3   Introduce punitive measures to RFOs for persistent failure to
      comply (‘sticks’)
5.4   Ensure Arts Council England is sufficiently aware and up to
      date of current disability issues and thinking, through
      consultation with disabled people (through the new Disability
      Arts Network for England)
5.5   Promote resources such as Access To Work to RFO’s to
      encourage employment/involvement of Disabled People

Mainstream

5.6  Increase numbers of disabled and Deaf people involved as
     audience-members (by programming more which is relevant
     and reflects identity); salaried staff; freelance artists, trainers
     and consultants; board members
5.7 Introduce training and mentoring for board members
5.8 Introduce access budgets
5.9 If RFO, should have minimum one Disabled Person salaried
     and two board members by 2006/7
5.10 Ensure all staff and board undertake DET and engage
     freelance consultant to support through action plan



Disability Arts/Deaf Arts organisations

5.11 Ensure (within reason) all key postholders are representative
     by 2006/7
5.12 Use Disability Arts Network for England to share
     knowledge/skills/training schemes eg create governance
     training scheme rolled out to all regions by 2007/8
5.13 Explore CIC legislation by 2005

6      Recommendations

Arts Council should

6.1   Increase resources (through possible partnerships with
      Learning and Skills Councils etc) and offer incentives to arts

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      organisations (and boards) who are prepared to train, mentor,
      provide apprenticeships to disabled and Deaf people.
      Trainees should be supported by paid mentors (who are
      experienced consultants) similar to the Arts Council
      Apprenticeship Scheme.
6.2   Work with Disability Arts Network for England to set up a
      Board Bank of disability consultants and a Mentoring Scheme
      for Governance. Board Bank members act as paid advisers
      to boards, working alongside and mentoring disabled people
      who wish to become board members but have no experience
6.3   Commission Disability Arts Network for England to create a
      Good Practice pack detailing the above schemes and other
      information relevant to governance issues
6.4   Promote CIC’s to arts organisations
6.5   Provide clear guidelines to all funded organisations about the
      responsibilities of governance, and the expectations and
      liabilities of trustees and company directors

Mainstream organisations should

6.6  Create budgets for access and disability advisers as standard
     practice
6.7 RFO’s in particular should be monitored in their employment
     practice, especially if they are ‘working with disabled people’
6.8 Offer mentoring schemes and placement opportunities on
     boards or staff teams, supported by paid disability advisers
6.9 Review their legal structures and constitutions
6.10 Engage one or two disability consultants on a regular basis or
     as paid advisers to their board/staff team
6.11 Ensure their boards and staff teams are representative of all
     those people who may engage with their work – eg. learning
     disabled people

Disability organisations should

6.12 Review their legal structures, particularly with regard to
     charitable status and governance
6.13 Open debate about encouraging more disabled and Deaf
     people into the sector
6.14 Engage in recording, documenting and sharing the good
     practice they are developing
6.15 Explore alternative ways of employing/engaging disabled
     people when recruitment to key posts or board is unsuccessful

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Title:               Governance
Authors:             Steve Mannix, Moya Harris, Tony Panayiotou
Version:             4
Date of Version:     July 2004




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