REVIEW OF TREASURE TROVE ARRANGEMENTS IN SCOTLAND
CONCLUSIONS AND RECOMMENDATIONS
Policy and Strategy
6.1 As has been noted 41, there appears to have been no recent statement of the Scottish Executive's policy concerning portable antiquities and Treasure Trove/ bona vacantia (TT). In recent years perhaps the only potential opportunity for making such a statement was at the time of the publication of the information booklets in 1999. Any publicity about the issue of these booklets seems to have been limited and certainly did not include any Ministerial statement. 42
6.2 I believe the system in Scotland would benefit from a clear and authoritative statement of policy, affirming the Scottish Executive's commitment to the preservation and protection of Scotland's portable heritage and public access to it. I so recommend. The publication of this report, or legislation following it, may provide a convenient opportunity for a suitable Ministerial statement.
6.3 Although a matter of law, ultimately the Crown's entitlement in Scotland to assert ownership of and claim (for public benefit) found archaeological and historical objects for retention and public access would be subject to any review of policy. However, there is wide support for retaining the existing position and I have found no good reason to recommend change.
6.4 The enactment of the Treasure Act 1996 provided statutory confirmation or clarification concerning the vesting of found treasure in the Crown in the other UK jurisdictions. It appears from the present exercise that there is a lack of awareness or understanding of the legal position in Scotland concerning the vesting at common law of treasure and other ownerless property in the Crown. It may be for consideration whether the present common law should be given statutory expression. There may, however, be other effective means of ensuring that the legal position, which does not generally seem unsatisfactory in its common law form, is better known and understood.
6.5 It is important, in my view, that the policy for TT and the related arrangements should be co-ordinated with and consistent with policy in other related areas. In particular the current development of a new museums strategy for Scotland is highly relevant. I have noted above 43 the Scottish Executive's intention to publish an Action Plan in the spring of 2003 following consultation on the National Audit of Museums and Galleries. That plan has not yet appeared and that creates certain difficulties for me in addressing some aspects of the TT arrangements, as noted below. In any case, I recommend that action is taken to ensure that the development of the arrangements for TT is fully co-ordinated with, and those arrangements are consistent with, the new museums strategy that emerges.
6.6 This review had its origin in part in the commitment to review material contained in one of the above-mentioned information booklets that were published in 1999. In common with a number of contributors to the Review I have been impressed by the authoritative and comprehensive guidance material published in England and Wales and Northern Ireland in the form of a Code of Practice. I accept and endorse the view that the operation of the TT system in Scotland would benefit from the preparation and publication of a similar document. I therefore recommend that a Code of Practice should be produced covering all aspects of the system in Scotland.
6.7 The Code would cover the parts of the process described below. It would be for consideration whether it should be statutory. Whether statutory or not, it should require to be reviewed periodically. Recent experience suggests that making it statutory would ensure a better prospect of timely review. If legislation were thought appropriate for the TT process, or aspects of it, that might create an opportunity for a statutory Code. In fact, as will be seen below, I do consider that there is a need for at least some limited statutory provision.
Finding and Reporting
6.8 This Review has disclosed evidence, from various quarters, of what appears to be significant non-reporting of finds that in law belong to the Crown and are eligible for claiming and disposal under the law relating to TT/ bona vacantia. There are also serious delays in reporting of finds, in some cases after their removal from the Scottish jurisdiction.
6.9 The number of metal detector users active in Scotland is not known, but the research has suggested it may be quite large - a rough estimate of as many as a thousand having been suggested by one informed contributor. Many, and probably most, seem to operate individually as there seem to be only a limited number of clubs in Scotland. Membership numbers of the main representative organisations are not clear. The Codes of Conduct of those organisations relate essentially to the system in England and Wales, with no specific recognition of the Scottish system.
6.10 The project research also clearly suggests inadequate oversight of TT compliance in non-HS archaeological excavations.
6.11 The present reporting obligations under common law are capable of bring characterised as vague and unclear and there is also lack of clarity as to the relevance of the provisions of the Civic Government (Scotland) Act. This has created a situation where, despite the publication of guidance, there seems to be both genuine and claimed uncertainty among finders. There is, I believe, some evidence of deliberate rejection of the law and disregard for it.
6.12 This leads me to the conclusion that there is a pressing need for the creation of a clear statutory reporting requirement to apply to all finders, whether chance finders, metal detectorists or archaeologists in the course of any fieldwork/excavation. I so recommend. 44 There should be a time requirement for reporting and offence provisions covering both failure to report and possession of unreported finds. Removal of finds from the Scottish jurisdiction without reporting should be prohibited by law, with penal sanction.
6.13 There is also a need for greater clarity about how to report as well as whether and when to report. If the legal reporting requirement is to be clarified and strengthened the system must offer arrangements that make it easy to report. Improved reporting will not simply be achieved by legislating. Better reporting arrangements and better relations between those involved will also be necessary. More formal arrangements should be made with appropriate local museums, but the preferred option would be to make use of a system of Liaison Officers or Coordinators to be appointed to operate around the country in co-operation with local museums. There should be a central TT Registrar post. I shall say more on this below.
Claiming and Disclaiming
6.14 Issues about the criteria and procedures for claiming (or disclaiming) finds as TT have arisen in this exercise. It may be useful in this context to keep in mind that references to claiming in effect mean asserting the Crown's legal right of ownership of the object in question in order that such object may be disposed of, for the public benefit, through the TT system.
6.15 Dealing first with criteria - the 1999 Information booklet on Guidelines for Fieldworkers says the Crown in deciding what to claim "takes into account the archaeological, historical and cultural significance of an object" 45, but there is no further explanation of "significance". Definitions of significance were produced and applied in the National Audit of Museums and Galleries, with categories of international, UK-wide, or national significance and regional and local importance. 46 Although these categories or definitions perhaps related primarily to collections, there is some reference to items. The test for international, UK-wide or national significance was "quality, rarity or uniqueness." In the consultation in the present review there was a suggestion that the quality of archaeological or historical information provided by the object is relevant and that "significant" might be defined as - "having the potential to increase understanding of Scotland's past".
6.16 In practical terms the real test may actually be whether the item is sufficiently significant to persuade any museum to request allocation - and be willing to pay the reward. In that sense the system is similar to that in England and Wales, although the legal definition of finds that may be claimed there (namely treasure as such) may mean that there is less of an issue of significance, importance or quality.
6.17 In discussion with the Advisory Group there was support for a suggestion about setting up a consultation exercise, to try to establish from appropriate experts in the relevant periods whether it is possible to devise more specific criteria and a consistent approach to claiming across the range of periods and objects. I believe that merits further consideration.
6.18 I have no doubt that the criteria for claiming should be defined and articulated as clearly as possible, as well as being well publicised. The proposed Code would be the place and the means for this. There may be value in restating what objects are not eligible to be claimed and, perhaps, those not normally regarded as appropriate for claiming. 47
6.19 I recommend that the criteria should relate to the "significance" of a find. Pending further possible consideration in consultation with experts, the formulation in the 1999 booklet, mentioned above, should meantime be retained, informed as appropriate by the National Audit definitions (which are in fact similar in certain respects to the current TT allocation criteria).
6.20 The claiming procedure should also be more clearly stated, and I so recommend. I have considered what the procedure should be, keeping in mind that as a matter of law the starting point is the Crown's right of ownership of all found treasure and bona vacantia and that in Scotland it is the Q<R who acts as the Crown's representative in asserting that right.
6.21 Clearly there must be consistent application of the claiming criteria and this means that central operation or oversight is probably necessary. However, there may be advantage in making provision if possible for screening or "sifting out" at the local level. This would require clear and comprehensive guidance, as well as criteria, and there could still be questions about delegation and accountability and about potential local self-interest. The best prospect of satisfactorily operating some such arrangement would seem to me to be if the sifting could be done in consultation with a local representative of the system, such as the proposed Liaison Officer/Coordinator. Such posts could also be of value in relation to the central recording of information about objects that are not claimed. Whether or not such posts are created, there may still be a case for the preparation and issue of guidance, and the provision of related training, to enable local museum curators or archaeologists to sift out unimportant material that clearly does not merit claiming and processing as TT.
6.22 A question arose about the role of the Treasure Trove Advisory Panel in the claiming process. The specification of the Panel's function when it was established in 1969 referred to advice about disposal and payment of rewards but did not mention advice about claiming. However, some subsequent descriptions of its role have mentioned advice on claiming. Under current practice the Panel is normally not directly involved in the initial process, but it may review a claim when considering allocation and reward and it is open to it to recommend disclaiming to the Q<R, instead of recommending allocation. It is the Panel's Secretariat that decides, on the basis of their own knowledge and experience and consultation with appropriate NMS curators or other museums, whether to recommend to the Q<R that a find should be claimed.
6.23 From this Review there seems to be little evidence of inappropriate claiming under the existing arrangements, and my own experience would tend to confirm that. Nor have there been suggestions that found objects have been wrongly disclaimed. It seems doubtful therefore whether there is a strong case for routine direct involvement of the Panel at the initial stage, so far as the proper identification of objects for disposal through the TT system is concerned. What might be the best argument for such involvement is that, as the Q<R's official advisory body, the Panel should give advice on all the issues for the Q<R, including the decision whether to assert the Crown's right of ownership. I can see there may be some force in that. However, to offer a recommendation on this question, the Panel would probably require to rely largely on the advice of the Secretariat (and experts on whom the Secretariat depends). Involvement of the Panel would add to its workload and to delay in the process. Possible options to meet those difficulties might be to use remote consultation, by e-mail and digital photographs, or to consult only the Chairperson and not the full Panel - as I believe was once the practice when the Chairman was the Keeper of the Museum of Antiquities, who had considerable relevant expertise. The involvement of the proposed Finds Liaison Officers or Coordinators in the claiming process is likely to assist the process.
6.24 On balance, my view is that the TTAP should not routinely be involved in the initial consideration of whether reported finds should be claimed by the Crown, but I accept that the alternative arrangement may have some attraction, so far as consistency of approach to the Panel's role is concerned. While I do not favour any significant change in the present arrangements concerning the involvement of the Panel, I recommend that the Panel should be consulted exceptionally in difficult or unusual cases and I believe there would be merit in considering producing appropriate internal guidance.
6.25 As regards the Q<R's involvement, I believe that it is reasonable that claims should generally continue to be formally made by the Q<R's officials, acting on behalf of the Q<R, and that the Q<R should normally only be personally consulted in exceptional and controversial cases. There may be advantage in ensuring that internal guidance in this regard is sufficiently clear and comprehensive.
6.26 Claims would continue to be conditional in the sense of being subject to museum allocation and reward. I am not in favour of adopting the English system of pre-claim enquiries to determine whether there is a prospective recipient museum before a find is declared treasure. The Scottish process does not involve the same procedural formalities (coroner) as the system in England.
6.27 As for disclaiming, there is in my view no good argument for introducing more bureaucratic process into the disclaiming procedure than at present. Clearer criteria will help. Expertise in judging the significance (and therefore "claimworthiness") of finds will continue to rest largely with the Secretariat, not the Q<R. I consider and recommend that the existing delegation should be maintained. The Secretariat should continue to be free to consult the Q<R's advisers (the Panel and the Q<R's solicitor) about disclaiming (as about claiming) as appropriate. There should be appropriate consultation with or information to local museum(s) before or after a find is disclaimed. Finders should be kept fully informed throughout the process and that should if possible include information about the object. There should also be appropriate acknowledgment of their reporting of the object.
6.28 The core remit for this Review, deriving from the commitment in the 1999 information booklet, is to review the criteria for allocation and the allocation process.
6.29 There has been substantial research, consultation and comment on these matters and valuable discussion with the Advisory Group. That has led to a conclusion that there is a need for clearer recognition than at present that the normal TT case involves only a single application for allocation, with contested allocation being exceptional. Accordingly I recommend that there should be standard, basic allocation criteria and a fast-track procedure for normal cases, with more detailed criteria and more complex procedure only necessary for the smaller number of contested cases.
6.30 In uncontested cases the criteria for allocation would be eligibility (through SMC registration) and commitment to fund payment of the relevant reward.
6.31 It is of course in relation to contested allocation that the real problems concerning criteria arise. Before turning to examine these, it is important, I believe, to emphasise that methods of resolving contests before consideration and decision by the TTAP should be explored and encouraged. I recommend that wherever possible consideration should be give to the use of joint ownership or loan arrangements to secure resolution of otherwise contested allocation.
6.32 There are certain existing criteria relating to what might be seen as special circumstances that I consider it appropriate to retain. Where the need for any special conservation arrangements arises the ability of the applicant museum to meet such requirements will be a key criterion. Generally, the preservation of the intregrity of assemblages appears to be a reasonable operating principle. Another relevant, but perhaps less conclusive consideration is facilitation of research.
6.33 I have referred earlier in this chapter to the need for TT arrangements to be coordinated with and consistent with wider relevant policy or strategy - particularly regarding Scotland's museums. That applies to the important question of allocation of finds.
6.34 The criteria set out in the relevant information booklet in 1999 48 recognised the development and the interest of local museums around Scotland, but sought also to recognise the key role of the National Museums of Scotland as "the principal repository of the national collections of historical and archaeological material and …the principal locus for research into Scotland's material cultural heritage." 49 The criteria therefore included a qualified presumption "that material should be allocated locally", but also provision that the key role of the NMS would be taken into account in relation to the allocation of "nationally important material". 50
6.35 The matter of the role of the NMS and the local museums is a key issue for the museums strategy in Scotland that is currently under consideration. My view, which is shared by my Advisory Group, is that the approach to the allocation of objects, as between the national museum and local museums or between separate local museums, should be consistent with the policy and strategic approach to the organisation and functions of museums in Scotland. As the relevant review and the preparation of an Action Plan remains to be completed I do not think it is possible for me to offer a final concluded view on what should be the criteria that should be applied by the TTAP and the Q<R to determine the allocation of TT finds in cases where more than one museum applies for allocation. However, it is appropriate to explore some relevant issues and options.
6.36 As has just been noted, the current criteria include a qualified presumption for local allocation which sits alongside recognition of the role of the NMS, with the principle operative criterion for allocation to the latter being national importance. The definition of "national importance" bears some similarity to the National Audit definition of national significance, to which reference has already been made. Again, it seems to me to be worth considering whether the National Audit definitions of international, UK-wide, national, regional and local "significance" might assist with the setting of allocation criteria.
6.37 The big issue, though, is - assuming the ability to identify objects as being of national significance or importance, where should such objects be allocated? One, partial answer to that question is no doubt about collecting policy and consistency of allocation with such policy. But what if museums at different levels have relevant collecting policies? Should the national museum have priority for objects of national importance?
6.38 The comparative study for this Review has shown that the stated policy in the other jurisdictions in the UK and Ireland is to give primacy to the relevant national museum. The policy is implemented in practice in Wales, Northern Ireland and also in the Republic of Ireland, where interestingly it applies to a wide range of objects and not just treasure, narrowly defined. Although the actual practice in England may not fully accord with the relevant provision of the Treasure Act Code of Practice, the statement remains in the very recently revised edition of the Code and it does appear that the right of first refusal is used at times, for example when a new category of artefact comes to light.
6.39 The legitimate interest of local museums to display locally the material cultural heritage of their collecting area to local people and visitors is recognised in our neighbouring countries. In England, local acquisition is encouraged. The social inclusion agenda is recognised in Wales by the policy of sharing treasures through loans to local museums. That is also the policy in Ireland and in Northern Ireland.
6.40 Since Scotland has a "national" museum it might be asked why the NMS should not be afforded an equivalent position to the other national museums in these islands in having first refusal of nationally-significant material - particularly when such material fits with its collecting policies and is not of a type that is already adequately represented in the national collection.
6.41 It seems from this review that there is a persisting perception that the NMS does have such a favoured position at present. In fact, as has been seen, 51 in recent practice the NMS has not always received objects, including quality objects, when it has sought them.
6.42 Attention has also been drawn to the finding of the National Audit that collections of national significance are not confined to the national organisations. 52 Some references have been made in the consultation in the present Review to the concept of a "distributed national collection". In that context an important relevant development that has occurred during the period of this Review was the publication in January 2003 of the Scottish Executive's Cities Review Building Better Cities: Delivering Growth and Opportunities report. The report contained a commitment to publish the Framework for future policy towards Scotland's museums in March 2003, and said - "The Executive is developing a framework of action for Scotland's museums and galleries which will be based on the principle of a distributed national collection." 53
6.43 Just what this means is not entirely clear to me, but what I think is clear is that account will need to be taken of this principle in the approach to allocation of TT finds that are of national significance. I assume that the principle does not imply the denial of any entitlement on the part of the NMS to acquire objects of national significance, but there appear to be potential difficulties in defining how decisions on such allocation are to be reached in circumstances where a local museum also seeks allocation. Perhaps a "shared" approach may be thought appropriate, for example involving joint ownership arrangements, or loan arrangements and a greater outreach and supporting role for the NMS. It may be that the TTAP (and Q<R) would require to be satisfied about such matters before recommending that allocation should be made to the NMS.
6.44 Related to this is what I believe to be a pressing need to establish or clarify the respective roles of more locally-based museums - area or regional and truly local. Without such clarification the task of the TTAP in advising the Q<R on allocation in contested cases will continue to be very difficult. This is not a matter for the Panel or the Q<R (or indeed this Review) and should be sorted out by the policy department and the museum sector. To the extent that the TTAP has to continue to make recommendations about competing applications from regional and local museums, without the benefit of such clarification, it should be assisted by the museums themselves at least agreeing appropriate loan arrangements, even though joint ownership or other amicable resolution cannot be agreed.
6.45 The problem of allocation would be solved, at least so far as the Panel and Q<R are concerned, if the museums in Scotland were to be incorporated (with the NMS) into a national museum service, but that does not seem a likely outcome of the present strategy review.
6.46 As I have mentioned above, I think that, so far as practicable, normal allocations should be made as quickly as possible by fast-track procedure. This would help to address one of the criticisms of the operation of the system that came out of the research - namely delay. Consideration should be given to using electronic communication to enable the TTAP to consider finds and recommend rewards remotely at "virtual" meetings. That should expedite the process, instead of cases having to await consideration at formal Panel meetings. There may be practical obstacles, including the need in at least some cases to examine objects physically rather than by digital image - not least in connection with valuation for reward. I also consider that the Panel should meet more frequently to help to speed up the process.
6.47 Contested allocations would continue always to be discussed at meetings. There may be merit in using a standard questionnaire form for submissions in support of contested bids. I believe consideration might be given to offering representatives of museums in contested cases an opportunity to appear personally to make representations in support of their museum's application. In that regard NMS representatives might appear to have a favourable position in practical terms in that the Panel normally meets in NMS premises in Edinburgh. However, this might be addressed by the Panel convening in another place, more suitable for the local or regional museum, or by the expenses of attendance being met by the Crown.
6.48 In considering whether there should be changes in the appeal or review process in contested cases I think it is relevant to note that the allocation of TT finds involves the non-statutory exercise of discretion by a senior office-holder of the Crown, on the basis of advice from an independent panel of experts. The Q<R is not qualified to challenge the "professional" judgement of the Panel, and is only able to assess whether it has acted in accordance with the set procedures and decided on its recommendation on the basis of fair and full consideration of the criteria and the representations received. The Q<R cannot be expected to carry out a qualitative review of the professional or expert view of the Panel. As noted above 54, there has been little use of the provision for an unsuccessful applicant museum to ask the Q<R to review a Panel recommendation to assess whether there has been proper compliance with the process rules.
6.49 I am not persuaded that is it necessary or desirable to set up some other form of qualitative review process that would involve another individual or panel reviewing the decision of the TTAP. What, I believe, is important is that the Panel makes its decision about recommendation on the basis of consideration of all relevant information and argument. So the process should ensure that the applicants are able to present their case fully to the Panel. For this reason, even though it prolongs the procedure, the current practice in contested cases of requiring or making exchange of applications, of advising competing museums of the Panel's inclination as to recommended allocation and of allowing supplementary submissions seem to me to be worthy of retention. I have also suggested introducing a procedure for personal presentation of submissions. I have not discerned any call or case for changing the present finality of the Q<R'S decision. Overall, therefore, I recommend retention of the current review and appeal arrangements.
Allocation of Finds from Archaeological Fieldwork/Excavation
6.50 In the course of this Review a question has arisen about the allocation of finds from archaeological excavations, particularly assemblages. Some dissatisfaction was expressed about the separate systems, under present arrangements, for dealing with finds from HS-sponsored excavations and those from non-HS sponsored excavations. As has been seen, 55 both sets do go through the TT system, at least nominally, but in practice the TTAP has in recent times only dealt with non-HS material. A number of consultees suggested that the Finds Disposal Panel should deal with all excavation site finds. Some suggested merging the FDP and the TTAP. I believe there may be benefit, for example in terms of consistency of approach, for all these finds to be dealt with by a single panel. I incline to the view that any new arrangements should preserve the TT dimension. I shall deal with this more fully below under the Organisational heading. Meantime I accept that this is an area that requires further consideration.
Follow - up/Audit
6.51 There have been comments from some of those consulted about what actually happens to objects allocated to museums under the TT system and, indeed, suggestions about some arrangements for follow-up to ensure satisfactory conservation, retention and public access. I see some merit in such arrangements and recommend that consideration be given to the introduction of follow-up or audit arrangements, specifically relating to TT finds. (The proposed liaison officers may be able to assist with this.) Although transfer of ownership means that objects could not be recovered if such auditing uncovered unsatisfactory circumstances, nonetheless the findings would inform the attitude of the Panel and the Q<R to future allocation.
Valuation and Reward
6.52 Valuation and reward are, of course, very closely linked and I therefore deal with them together, although recognising that the question of value is a factor that is also relevant to the allocation process in terms of the ability of museums to afford acquisition. The valuation process, which I have described above, 56 has been the subject of some criticism in the Review research. It is interesting that issues of accuracy of valuation arose in the consultation from both main interest groups - finders and museums, the former suggesting valuations (and hence rewards) were too low; the latter suggesting they were too high. That might lead to an objective conclusion that the existing system has been getting it about right!
6.53 Advice to the Q<R about the amount of ex gratia rewards is one of the core functions of the TTAP at present and I consider that recommendations about rewards should continue to be the responsibility of that Panel. I have considered whether there is a case for another, separate independent valuation committee for Scotland, but I am not persuaded this is necessary. There is already an independent panel with the responsibility for providing advice on rewards based on valuation of the find - namely the TTAP. What is important, it seems to me, is that the Scottish Panel should have or be in a position to obtain independent, authoritative advice on values. I believe the TTAP Secretariat has provided a useful service in carrying out research on values and offering advice to the Panel about valuation. I do, nevertheless, have some doubts about whether it should continue to be the main source of advice on valuation. However experienced it may be and however comprehensive its researches it may lack the necessary appearance of expertise and independence. On balance I am inclined to think that the Panel should make use or greater use, through the Secretariat, of approved outside experts. I recognise that there could be cost implications of such an approach, but so long as rewards are based on market values it is essential for the credibility and the effective operation of the system that there should be confidence in the valuation and reward assessment process. I am not sure that there is full confidence at present. I therefore recommend that consideration should be given to establishing a list of approved experts who should be consulted on values. This would involve the Secretariat commissioning a provisional valuation from the appropriate expert adviser on the list. It may also be worth exploring whether there may be potential for developing greater contact with the Treasure Valuation Committee Secretariat in London to obtain relevant information - while recognising the narrower range of objects that it deals with.
6.54 In the course of the Review suggestions were made that the system should move away from market value based rewards and offer, say, scale amounts. I understand such arrangements may obtain in some other jurisdictions and I have noted the position in Ireland regarding particularly valuable items. 57 An argument that may be adduced to support such an approach is that, after all, ownership of all finds rests with the Crown. However, having considered this option and taken account of the results of the finders' survey, I do not think it would now be reasonable or prudent (in terms of encouraging reporting) to make such a change and I therefore recommend that rewards should continue to be based on market value.
6.55 There was support for retaining arrangements for the abatement of rewards and I consider that abatement or non-payment undoubtedly remain appropriate in certain special circumstances that should be clearly defined. The current statement of such circumstances in the Guidelines for Fieldworkers58 is largely satisfactory, but may need to be extended slightly - for example, to cover situations where there is irregularity or even deception about declaration of the place and circumstances of the find. I should also say at this point that I endorse the rule set out in the Guidelines that those who undertake organised archaeological fieldwork projects, whether on a paid and voluntary basis, are not eligible for any reward, and this includes metal detectorists who organise or participate in a fieldwork project.
6.56 As has been seen, 59 some finders decline a reward. Finders should continue to be made aware of that option and to be reminded that rewards have to be paid by the museum to which the find is allocated.
6.57 It is clear from the consultation with museums that the funding of rewards is an issue, and that there is a problem of availability of resources for acquisition. This requires further attention, having regard especially to the recommendation about funding made by the All-Party Parliamentary Archaeology Group in its recent report. 60
6.58 I consider that the process of valuation should be more transparent. Finders who are eligible to receive a reward should have greater opportunity than at present to be informed of the indicative valuation and to challenge it - both before consideration by the Panel and after the Panel makes its recommendation to the Q<R. Under the new approach that I offer for consideration, finders should be advised by the Secretariat of the provisional valuation by the relevant expert in time to allow them to make representations to the Panel. Any challenge should, however, only be considered if it is in the form of written valuation information supported by evidence about the nature of the find and its possible value - for example, a separate valuation by another expert. I recommend that the procedure should be modified as outlined above.
6.59 The system should provide other forms of reward or recognition than just financial reward. In particular there was wide support for the proposal by the present Chair of the TTAP (made at the Society of Antiquaries Seminar) that all individual finders should receive a certificate from the Q<R, acknowledging the claimed find and stating where it has been allocated. I endorse that and so recommend. The TT website and the proposed TT Annual Report (see below) should name finders (unless they request otherwise). Recipient museums should make clear in any display of any object that has been acquired through TT that it has been so acquired and should consider including further detail, such as the identity of the finder (with consent).
6.60 I believe that this exercise has confirmed the continuing need for an independent advisory body such as the TTAP. The TTAP performs a valuable role, but it may be useful to restate clearly what precisely its responsibilities are. For purposes of the operation of the TT system its role is primarily to advise the Q<R about the allocation of finds and the payment of rewards. It may also offer advice about the claiming of finds. There may be a need for clarification of its role in that regard, as has been discussed above. 61
6.61 There is overlap or duplication of both the composition and, in a sense, the nature of the role of the TTAP and the FDP. I am inclined to support the view that there may be advantage in merging these advisory bodies to create a single body that deals with all finds of archaeological objects from excavations and provides advice to those responsible for making the necessary decisions about disposal. I believe a single, merged panel would sit more comfortably with the TT rules and system than the transfer of responsibility for finds from all archaeological excavations to the FDP. I recommend that consideration should be given to merging the FDP with the TTAP.
6.62 The composition and size of the TTAP are matters that have been frequently raised in the course of this review. There have also been suggestions about increasing the frequency of meetings. A combined Panel would, I think, require a larger number of members to enable it to sit more frequently in order to deal with a wider range of material as well as generally to deal more speedily with allocation of finds (but subject to what I have suggested above about "virtual meetings"). More frequent meetings might also enable the Panel to try, if possible, to deal at an early stage with archaeological fieldwork and make preliminary allocations that would permit early involvement of museums in excavations. The Panel should be able to meet with a quorum of members, without the need for all members to attend all meetings. The relevant arrangements for the attendance of members could reflect the meeting agenda. I recommend that the Panel should sit more frequently than at present - say six times a year.
6.63 My recommendation is that the Panel should be chaired by an independent chair and should have at least one independent "lay" member, but otherwise I believe there is a good argument for its members being representatives of the main relevant constituencies - SMC, NMS, finders (perhaps NCMD), archaeologists (perhaps ARIA). I do not believe it should continue to consist solely or principally of members of the museum community, however well such members have undoubtedly served the system until now. But it may be for consideration whether it should include one or two such members (in addition to SMC) to ensure it is of sufficient size to be quorate without all members having to attend. The need for application of Nolan selection procedures should be considered further, but it may be that they would only require to apply to members other than "constituency" representatives and to the Chair, who I consider should in future receive payment for her/his services.
6.64 There may also, I believe, be merit in the suggestion that the Panel should not be tied exclusively to Edinburgh and should convene from time to time elsewhere in the country - perhaps with the assistance of HS or some of the larger local museums.
6.65 I have considered whether there are viable options for reducing the extent of the current spread or fragmentation of organisational responsibilities and arrangements. At the departmental level, so long as the Crown Agent retains the office of Q<R and responsibility for the range of the duties of that office, it seems right that some support for the Q<R in his TT role should remain in or associated with the Crown Office. There is also a fairly strong view that the continuing involvement of the Crown Office in the administrative process is desirable from the point of view of demonstrating independence. Experience suggests that there is clear value too in the involvement of the Q<R's solicitor in providing legal advice about TT matters.
6.66 To the extent that the policy concerning TT is an aspect of the Scottish Executive's culture and heritage policy, the SEED has an interest. That is reflected in the related responsibility for appointing and supporting the TTAP - including funding its Secretariat. SEED also has responsibility for HS. On the face of things, therefore, it may seem appropriate that the Department (through the Tourism, Culture and Sport Group) should continue to have a role in the system. However, the current funding position is somewhat odd as the Crown Office provides some financial support for the TTAP and its Secretariat, while the main funding of the Secretariat comes from the SEED. There are then also questions about the relationship between the NMS and the Secretariat, as regards staff and other resource management arrangements. In reality the work of the TTAP and the Secretariat is in support of the Q<R. The workload demands on the Secretariat are generated by the Q<R and also in practice the Panel, and not the NMS or the Department. So it is hardly surprising that there is some dissatisfaction with the current arrangements on the part of the latter bodies.
6.67 As regards departmental responsibility, it would, I suppose, be open to the SEED to transfer this responsibility and the related funding to the Crown Office to take over fuller responsibility for the system arrangements. That is a matter that should be further discussed between the respective departments. It would, of course, need to be recognised that any such transfer might not be entirely consistent with policy responsibility, but both departments are departments of the Scottish Executive and appropriate consultation and communication should be possible. In the event of such a transfer of responsibility to the Crown Office, the SEED would no doubt continue to support the operation of the TT system indirectly through ensuring that funding of the NMS allows the provision of necessary advice and expertise in relation to TT finds. There would be a question about the appointment of the TTAP. Reflecting the policy responsibility it may be appropriate to leave this with the Minister.
6.68 The position of the TTAP Secretariat needs to be reviewed and clarified. Notwithstanding some expressions of concern about a possible impression of partiality created by the association of the TTAP Secretariat with the NMS there has really been no significant support for the physical removal of that unit from the museum. On the contrary, even those who have expressed concerns along the foregoing lines appear to see a clear benefit in the close proximity of the unit to the expertise and other specialist resources of the NMS. Negative perceptions resulting from the association of the Secretariat with the NMS may be removed or reduced with internal reorganisation at the NMS which would give the Secretariat a clear place within the new structure as a separate, "independent" unit.
6.69 My view is that the wider role that the Secretariat plays in the system should be recognised by re-badging it as the "TT Secretariat" and appointing one of its staff as "TT Registrar" (see above 62). Staff resources must be sufficient to deal effectively and expeditiously with the workload. Suitable line management arrangements should be made for staff and resource management responsibilities should be clarified. The Secretariat would not be subject to management direction by the Panel. Possible options, as suggested by the NMS include - that NMS could deliver an agreed fixed cost service with full management responsibilities passed to the NMS; or alternatively, that the Secretariat could become Crown Office employees. In the latter case the NMS would provide accommodation and related services. Again, this would be a matter for further discussion between the Crown Office, NMS and (probably) the SEED.
6.70 There is substantial, indeed almost universal, support for the appointment and use of Liaison Officers around the country. I strongly endorse that proposal and have no doubt that the introduction of a new arrangement of this kind would substantially improve the operation of the system and also relations between the key stakeholders on which it depends. I therefore recommend the appointment of Liaison Officers or Co-ordinators to be located around Scotland. The detailed arrangements (for example, the number and location of such posts) will require further consideration and consultation. My view is that although these officers would be local (more likely area or regional) they should be representatives of the TT system and part of that organisational structure, rather than local museum or authority employees. This question may need to be addressed in conjunction with any proposal that might emerge for the creation of a network of regional museum officers.
6.71 Additional resources would be required. My suggested approach would mean central government, rather than local authority funding. No doubt HLF funding might be sought (as in England and Wales), but consideration will also require to be given to Government funding - not least because of the recommendation of the All-Party Parliamentary Archaeology Group in its recent report that the Government should also provide resources for schemes in Scotland and Northern Ireland analogous to the Portable Antiquities Scheme in England and Wales, but adapted to local conditions. 63
6.72 I have noted above the current position concerning the funding of the Crown Office work on TT out of the ultimus haeres receipts ingathered by the Q<R. 64 I therefore simply raise for consideration the question whether the application of those receipts for the wider funding of the operation of the TT system in Scotland might be considered a worthy and suitable use of those funds. However, there is of course uncertainty and variation from year to year as to the amount of those receipts.
6.73 I include here further mention of another matter concerning the process which I think merits attention. I have referred above to concerns about delays in the process and offered some suggestions to expedite the process. I was impressed by the inclusion in the Code of Practice for England and Wales of a section on "Speed of Handling Cases" and the setting of time targets. 65 The targets include - no longer than twelve months from the find being received by the coroner to payment of the ex gratia reward. I recommend that time targets should be set for the process in Scotland and suggest that the targets in England and Wales might be taken as a model.
6.74 The Review has disclosed quite general dissatisfaction, across the range of parties, with the quality and sufficiency of available information about the system.
6.75 I have recommended the preparation and publication of a Code of Practice, which would replace the 1999 booklets. Other forms of publication should be considered, such as information leaflets for particular interest groups.
6.76 The proposed Liaison Officers should have a role in raising the profile of the system locally - with the assistance, if possible, of local museums.
6.77 I recommend that an annual report should be produced. If there is legislation there should be a statutory requirement to publish such a report.
6.78 The planned setting up of a website is a valuable development in addressing issues concerning education, information and communication. Adequate funding for it must be assured.
6.79 I recommend that representative bodies, such as the NCMD should be encouraged to give more publicity to the Scottish TT system and to re-draft/expand their conduct codes to cover Scottish circumstances specifically. The proposed Code of Practice should assist this.
6.80 In this Review I have examined and made proposals about the arrangements in Scotland for preserving and protecting the portable heritage of the Scotland. It is necessary to recognise also that there is an international, as well as a national, aspect to the protection of antiquities. Separate consideration will require to be given to that dimension in the Scottish context, following the UK Government's accession in 2002 to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. In particular, attention will need to be given to concerns that possible Westminster legislation in this area may create a situation whereby "illegally removed objects could be imported into the UK via Scotland". 66