If you can make a handbrake turn at sea that is what the UK Ministry of Defence have done by choosing not to defend the application for Judicial Review of the HMS Victory 1744 Project made by Mr Robert Yorke. As a result the smell of burning rubber can be had all the way from Whitehall to the Home of the Royal Navy in Portsmouth and out to the cold and lonely waters of the western English Channel where HMS Victory and the remains of her 1100 crew lie. Therefore the decision of Secretary of State for Defence Michael Fallon to withdraw the permission for the recovery of “at risk” surface items from the wreck of HMS Victory 1744 is clearly significant, but the PipeLine must caution it is too early to see quite how significant it may turn out to be. For a start it all depends on the legal defect in the granting of permission which the Treasury Solicitor has identified. It may be a simple matter, easily rectified and the permission may be reinstated in a matter of days, or, as the legal team behind the proposed Judicial Review clearly think, the defects in the Odyssey/Maritime Heritage Foundation project may be fundamental and fatal in that the HMS Victory 1744 Project does not comply with the full principles of the Annex to the UNESCO Convention on the protection of the Underwater Cultural Heritage which form British Government Policy for historic shipwreck sites. An issue which would require the re-writing and resubmission of the entire Project Design. Then there is another critical factor outside the purely legal and compliance issues which the case raises. The HMS Victory 1744 Project is now profoundly political and potentially politically toxic to the current UK Government in that it opens up accusations that the rapid decision to allow the project to proceed to recovering artifacts, made almost as soon as Mr Fallon became Secretary of State, was intellectually flawed, ideologically driven and made to favour a political crony with whom Mr Fallon and other senior members of the Conservative Party have longstanding links.
Seen in that light one clue as to why the Secretary of State chose not to even attempt to defend the bid for a Judicial Review may lie in the text of the Pre Application Protocol letter sent by Mr Yorke’s legal team which has been seen by thePipeLine. The letter states
“The details of the action that the Secretary of State for Defence is expected to take
37. The Claimant requests the Secretary of State to:
(a) confirm whether the document entitled “Project Design – A Mitigation Strategy for the First Rate Warship Victory (1744) – Non-Technical Summary & Key Management Principles” is the entire project design submitted by MHF to the MoD {if not, the Secretary of State is expected to provide to the Claimant a copy of the entire project design);”
It clearly is not the entire Project Design because it is described as a “Non Technical Summary”. If the Secretary of State and the Advisory Group, Expert Panel and English Heritage, did not have access to and approve the entire Project Design for the Victory site, then the decision cannot be compliant with Government Policy under the UNESCO principles. thePipeLine also understands that this issue has arisen in the pre application process for a marine licence, with suggestions Odyssey is questioning the level of information released into the public domain by the Marine Management Organisation as part of the statutory consultation for a licence under the Marine and Coastal Access Act.
Next the Secretary of State would be obliged to
“(b) provide to the Claimant copies of any documents in his control relating to the contractual arrangements between MHF and OME and confirm whether these contractual arrangements are still in force;”
This would reveal precisely what the Maritime Heritage Foundation is contracted to pay Odyssey Marine Exploration, and what legal and contractual rights to control, manage and exploit the HMS Victory wreck site commercially, the Maritime Heritage Foundation have conceded to Odyssey. Adequate and appropriate funding are again central to the UNESCO principles and it is important to remember that the contract between Odyssey and the MHF was not put out to tender and was granted at a time in January 2012 when the Maritime Heritage Foundation consisted of just three trustees, none of whom had any experience of Maritime Archaeology or significant heritage projects and when both Odyssey and the Maritime Heritage Foundation were represented and advised by the same consultant, Dr Sean Kingsley.
Connected with this a successful application for Judicial Review would
“(c) confirm whether MHF has provided an assurance to the MoD that items recovered from the Wreck and not transferred under the Deed of Gift will be included within the Victory 17 44 Collection (if so, the Secretary of State is expected provide details of that assurance, including the date on which it was provided);”
“(d) confirm whether the MoD has precluded MHF from commercially exploiting any items recovered from the Wreck (if so, the Secretary of State is expected to provide details of when and how that occurred);”
These two issues are fundamental to the core complaint of the Judicial Review application regarding non compliance with the UNESCO Principles. In particular the accusation that the project is deliberately designed to embody the ability and even the intention to monetise non crown items from the wreck site, up to and including any coin, plate such as officer’s dinner ware, or specie which may have been on board the ship when she sank. thePipeLine understands from various sources that the MOD were warned of this risk during the decision making process and for whatever reason chose to ignore the warning.
It would also be politically toxic for the information that Secretary of State Fallon had against all advice personally sanctioned a situation whereby the most private property of drowned British sailors could be put up for sale by the a foreign owned treasure hunting company to emerge, within weeks of what will be a close and bitter General Election.
Scrutiny of the decision making process also extends to the Secretary of State’s use of the mechanisms of consultation available to him. The Judicial Review would require the Secretary of State to
“(e) provide details of all individuals and groups (including the Advisory Group, members of the Expert Panel, English Heritage, the National Museum of the Royal Navy, and the Receiver of Wreck and any other person(s) or bodies) who were consulted by the Secretary of State before he made the Contested Decision, the information concerning the Wreck and the MHF’s project design that was made available to those individuals and groups for the purpose of such consultation, what was asked of them and what they said in response (please provide copies of all materials);”
This material is expected to show two things. First that the Secretary of State was warned that the Project Design was not compliant with the UNESCO Principles and Government Policy for historic wrecks and second that the HMS Victory 1744 Advisory Group, the HMS Victory 1744 Expert Panel and above all English Heritage [soon to become Historic England] the Government’s statutory advisor, were all excluded from the decision making process by Mr Fallon when he made his final decision at some point in the weeks between his taking up the post in July 2014 and permission being announced in October 2014. The question would then arises as to what that advice would have been and why Mr Fallon did not want to hear it? The suspicion is Mr Fallon was minded to grant permission for whatever reason, regardless of the advice he received, or thought he would receive.
Finally the Judicial Review would also establish and
“(f) confirm the details of the peer review process anticipated by Rule 9 of the UNESCO Annex including whether or not Dr Sean Kingsley who attended Advisory Group meetings as a consultant to both OME and MHF, was a member of this.”
Rule 9 states “Prior to any activity directed at underwater cultural heritage, a project design for the activity shall be developed and submitted to the competent authorities for authorization and appropriate peer review.” While there is no evidence that Dr Kingsley has behaved inappropriately, there is the perception that in representing both the contractor Odyssey, and the contracting party, the Maritime Heritage Foundation, he has an irredeemable conflict of interest and also that the Maritime Heritage Foundation has no access to independent advice. Especially when the Secretary of State sidelines the groups and bodies whose duty was to provide such advice. Thus as an interested party and the author of the work being reviewed, he cannot also be part of any accepted, impartial Peer Review process and if he did take part in meetings about the HMS Victory project on that basis such meeting cannot be a valid peer review process.
There is a further significant political risk to the Secretary of State and the Cameron Government. The process of legal disclosure might also be expected to reveal the scale and nature of contacts between Lord Lingfield, Mr Fallon, and quite possibly other leading Conservative politicians including Health Secretary Jeremy Hunt who held an off the record meeting to discuss HMS Victory 1744 with Lord Lingfield in July 2010. A meeting which is currently under investigation by the Cabinet Secretary as a potential breach of the Ministerial Code. Meanwhile, as thePipeLine revealed, Mr Fallon has party political links to Lord Lingfield going back to the 1990’s.
As the Secretary of State considers the legal, and above all the political dangers or reinstating the permission, perhaps with new safeguards to protect the UNESCO principles in full, even the most dyed in the wool opponents of Odyssey’s business model for commercial treasure hunting and salvage undertaken as a version of archaeology will recognise that there is no cause for triumphalism in the Secretary of State’s current decision. Whether the delay is short term, while the Secretary of State, “retakes” the decision, or is long term and perhaps fatal to Odyssey’s relationship with the HMS Victory Project, the decision making process for the UK’s historic Royal Navy wrecks is clearly broken and utterly dysfunctional. It will be up to the organisations in the mainstream UK Maritime Archaeology community to pull together in a way that by enlarge have not during the run up to a judicial review which has been left to one individual, Mr Yorke and work with Government come up with something better. Perhaps by passing the Ministry of Defence’s anachronistic role in administering Military heritage including historic wrecks to the Department for Culture, Media and Sport, Historic England and the equivalent bodies in the devolved administrations of Scotland, Wales and Northern Ireland who have both the appropriate expertise and the political awareness of the serious and negative international implications of allowing Government sanctioned commercial treasure hunting on historic wrecks.
If no workable solution can be found and important wrecks like HMS Victory are not protected by Law and practice, so that they maybe even deteriorate through natural degradation and the human predation of looters, the risk is that commentators will say that Odyssey may have been right after all and a model where archaeological artifacts from shipwrecks are sold to pay for the work is the only way that such work can be undertaken. A prospect which is unthinkable to those who are today rightly celebrating what is a great achievement for the persistence and not a little courage, of Mr Yorke and his team, who have taken on a great department of State in the cause of an ethical maritime archaeology untainted by commercial considerations, tawdry salesmanship and share pumping and made it blink.
