[Lead Image: thePipeLine]
A canny application of Nudge Theory to save important archaeological artefacts for the nation’s museums, or a case of the Emperors New Clothes which is open to criticism from archaeologists and metal detectorists: thePipeLine asks what are the implications for Archaeology and the hobby of Metal Detecting of the long awaited Amendment to the Treasure Act 1996?
Designed to prevent the sale and disappearance from public view of significant historic objects which do not contain precious metals, the amendment of the definition of “Treasure” in the 1996 Treasure Act has been under discussion at Government level since 2019. The outcome of those discussions, the Treasure [Designation] [Amendment] Order was published this week by the UK Government and, while it is clearly a significant move in the development of the law and regulation relating to the discovery of archaeologically significant items, particularly by metal detectorists, on first reading the order raises a number of serious questions suggesting it may not be the game changing initiative saving hundreds of important objects for the nation which some media coverage suggested.
Deriving from a Statutory Instrument, the quickest and neatest means of changing legislation requiring only a single vote in the House of Commons and another in the House of Lords, the amendment order adds to the existing definition of Treasure by adding an additional criterion of significance, rather than purely on the presence precious metal or an association with a treasure item.
Specifically cultural significance can now be assigned to an artefact on the basis that, the order states,
“a)it provides an exceptional insight into an aspect of national or regional history, archaeology or culture by virtue of one or more of the following—
(i)its rarity as an example of its type found in the United Kingdom,
(ii)the location, region or part of the United Kingdom in which it was found, or
(iii)its connection with a particular person or event; or
(b)although it does not, on its own, provide such an insight, it is, when found, part of the same find as one or more other objects, and provides such an insight when taken together with those objects.“
However, this is not designed as a catch all set of clauses for all metal items.
Instead it is framed as a solution to the issue of significant archaeological finds which contain little or no precious metal and so fall through a loophole in the 1996 Treasure Act. An issue which was highlighted in a number of cases including most famously the Crosby Garret Roman cavalryman’s helmet and the Ryedale hoard of Roman religious objects.
Both were metal detector finds which went to auction and were sold to private collectors, although the Ryedale Hoard was subsequently saved for the Yorkshire Museum thanks to a philanthropic donation from American donor Richard Beleson, with additional funding from the Art Fund and other donors, which covered the £185k price tag.
The amendment order which accompanies the legal text amending the Act acknowledges the limited aims of the amendment, or, what its critics might suggest, its lack of ambition.
The amendment order states that [our italics],
“It is not intended that experts examine every single find for significance, but it will allow important and significant finds to be retained where they are recognised.”
Of course the immediate question this definition raises is who recognises “significance” and at what point in the Treasure process?
Is it the individual detectorist, who may not be experienced in the hobby and certainly cannot be assumed to have a detailed knowledge of all potential finds types?
Not even archaeological finds specialists are expected to have that breadth of knowledge.
More likely is that this is an application of so-called “nudge theory”.
That is the way of modifying human behaviour through changing the environment within which that behaviour is expressed. In this case the “nudge” is towards increasing the number of finds reported by detectorists to the Portable Antiquities Scheme out of a fear of being caught on the wrong side of the Law by not reporting a find subsequently found to be “significant”, and therefore treasure.
In other words, while reporting finds to the PAS is still not compulsory, a detectorist might feel that it might be safer to report anyway rather than risk having their collar felt by the local Rural Crime Team.
Even so, there is also an apparent ambiguity in the use of the word “where”. Does this refer to the geographical location “where” an object is found, or the event “where” that significance is recognised?
To take a hypothetical example.
What happens if an artefact found in the Home Counties is only recognised as “significant” in the terms of the Treasure Act when sent for auction in Derbyshire? There is the hypothetical potential for a Home Counties museum closest, or close, to the find spot to seek to retain the artefact, but the Treasure Act as amended would not make this explicit.
The order states also that,
“It is intended that the bar for meeting this new class of treasure is high, and this is reflected in the use of the word “exceptional”. The level of significance should be seen as akin to that set by the Waverley Criteria used when considering export licenses.”
Operational since 1952, the Waverley Criteria are employed by an expert panel in assessing whether an export ban should be placed on an art object or cultural artefact to allow time for a UK museum or gallery to raise the money to effectively buy out the owner who is seeking to export it from the UK.
The Waverley criteria are,
Waverley One – Is it closely connected with our history and national life?
Waverley Two – Is it of outstanding aesthetic importance?
Waverley Three – Is it of outstanding significance for the study of some
particular branch of art, learning or history?
It must be stressed that the Waverley Criteria do not result in an object being saved for the nation automatically, merely that the object enters a formal process where it might be saved for the nation if, for example, the auction hammer price can be matched to compensate the buyer.
The Waverley system is also fallible as was found in the case of the internationally important statue of the Egyptian scribe Sekhemka controversially sold by Northampton Council in 2014. In that instance, because the statue was already in public ownership and was then sold to a private buyer, museum ethics prevented an attempt to raise the money to match the fifteen million pounds price tag.
The statue has not been seen in public since the auction and was last reported as being exported to the USA.
More fundamentally there are major questions regarding why the DCMS chose to set such a “high bar” for the significance of any treasure artefact based on the Waverley criteria in the first place.
These questions include,
1. Is the amendment based on a high bar which might affect relatively few cases because it has been designed not to provoke Metal Detectorists who fear restrictions to their hobby? Alternatively,
2. Is the amendment designed not to overwhelm the PAS/Treasure system with new work? Or is it…
3. Both/Neither of the above?
The issue of workload placed upon the Portable Antiquities Scheme and the Treasure Valuation Committee [TVC] of the British Museum is particularly important as there are longstanding concerns among metal detectorists that the Treasure system is creaking and unduly slow.
In an attempt to address these concerns the new Code of Practice for Responsible Metal Detecting attaches targets to each stage of the treasure process. For example, from commissioning a Treasure report to the Coroner’s Inquest which decides the status of the object should take no more than one hundred and eighty days [six months]. However, as has been seen with repeatedly within the National Health Service, targets can be missed thanks to systemic problems as well as due to outside factors and while the PAS states it has been promised additional funding from the DCMS for it operations and to upgrade its public database, it remains to be seen whether the new system can be delivered within the resources available.
Here it is worth pointing out that the Amendment Order states the new system will cost £3.8 million at 2020 prices to deliver. This is small change in Whitehall terms and arguably once again speaks to a lack of ambition in the amendment.
Nonetheless, there appears also to be no published estimate for the annual cost of the new system with the PAS and TVC resourced to deliver the target times for processing treasure claims set out in the new Code of Practice.
Overall, while some archaeologists would wish to follow the Republic of Ireland and ban metal detecting for historic objects outright, and others at the least would call for compulsory recording [with or without licencing], unquestionably new the #TreasureActAmendment goes some of the way to addressing criticisms of the existing system by now including “significant” finds with no precious metal content.
However, perhaps the biggest question going begging is how can all objects of “significance” be recognised without the compulsory recording of finds? A situation which is almost certainly beyond the resources of the Portable Antiquities Scheme as currently resourced and funded?
It follows that, if a significant find can slip through this loophole in the system by not being recognised and reported by a finder who may have no idea of the significance of what they have found, what is the point of the amendment except in the broadest of terms?
Is the expectation in the DCMS, and at regulators Historic England and CADW who sit above the Portable Antiquities Scheme, that the reconfigured Treasure Act will pick up some [many/most?] significant finds like Crosby Garrett and Ryedale?
Or is the idea that monitoring auction catalogues and E-Bay [other on-line auction platforms are available] will provide a backstop, tipping off the PAS and Treasure Committee of the British Museum about a “significant” treasure, as happened when an important Iron Age harness mount was spotted in an auction catalogue by a curator at the British Museum in early 2021?
As reported in thePipeLine, the artefact had not been reported to the PAS, but had gone directly to auction at Hansons.
That auction houses are likely to be impacted directly by the amendment is acknowledged in the amendment order which states that there may well be,
“…some loss of income to dealers and auction houses from items that are now classed as treasure.”
While most archaeologists will greet this assessment with the smallest of violins, they will also recognise that there is also a glaring loophole in that, as is legal practice, the new definition cannot be applied retrospectively. This means that a “significant” find under the 2023 Amendment could be sent to auction as “Found pre Treasure Act Amendment 2023”, and without an full [expensive] investigation and proof of the fraud there is nothing the authorities could do about it.
Precisely this “pre act” framing of an artefact for auction has been observed regarding finds which might fall foul of the Protection of Military Remains Act which forbids the unlicensed excavation of military craft and aircraft.
Against that background at least one leading archaeological body has been underwhelmed by the Treasure Act amendment with the Chartered Institute for Archaeologists Tweeting,
“We welcome Government update of the definition of Treasure, especially the new significance-based approach to valuing finds. A good first step in improving the Act, but more work is needed to ensure the system remains ethical & sustainable.”
CIfA, which is the professional body for UK archaeologists, went further, adding this caveat,
“CIfA would have liked to see the extended definition applied to non-metal objects too. We also support longer term reform to further dissociate the idea of ‘treasure’ with financial value, with a clearer focus on cultural value.”
The exclusion of non-metallic objects is a common criticism of the Treasure Act and was even pointed out by implication in the 2022 Christmas Special of the hit TV comedy “Detectorists” when the leading characters, Andy and Lance played by Mackenzie Crook and Toby Jones, missed literally discovering the Holy Grail of metal detecting.
Meanwhile, in its reaction to the the publication of the Treasure Act Amendment Order the National Council for Metal Detecting [NCMD], one of the representative bodies for organised metal detecting, told its members,
“We have been repeatedly assured by DCMS that items being considered under this new classification of treasure will have to meet a very high bar of evidence and is unlikely to bring in a large number of new treasure cases (less than 100 per year).”
If that is the case many archaeologists may harbour the thought that faced with calls for greater regulation to protect the finite resource of the national heritage, the metal detecting community has once again got off lightly.
Indeed, after the hoopla of the weekend press coverage which took its cue from a DCMS press release which stated “Thousands more treasures to be saved for the nation…” archaeologists, concerned at the potential impact of metal detecting on the historic environment, could be forgiven for thinking the #TreasureActAmendment means the Portable Antiquities Scheme has been measured up for a suit of new clothes by a couple of spiv tailors.
There is one final issue to consider and that is the impact of the new definition of “significance” on the case law regarding so called Treasure.
Case law is the corpus of decisions made by the courts in applying legislation and this process of legal evolution is likely to apply to the new definition of “significance”.
This is because the term has the potential to be further defined as cases are brought forward and decided.
While entirely normal, the most likely direction of travel is to develop and widen the definition, making it applicable to a wider range of objects.
The authorities, including the DCMS, Historic England and the Portable Antiquities Scheme will be aware of this, and so are the National Council for Metal Detecting.
In its briefing note to members about the new definition of treasure and the practice of the Portable Antiquities Scheme, the NCMD warns,
“However, if this new ‘significance’ classification starts to go beyond the stated intention of protecting only really important national and regional finds then we are fully prepared to step in and fund the cost of legal challenges.”
Overall the sense from the Treasure Act Amendment is that, at best, this is work in progress on a journey towards the tighter regulation of metal detecting in the wider public interest, for example by imposing a regulatory regime on rallies.
At worst, this is as far as the authorities think they can go.