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| From the 2016 Treasure Trove Code of Practice |
First, an apology. The following is a pretty dense and complex post which looks in minute detail at the reasons why-as I conclude- there was never any chance that the Galloway Viking Hoard would be allocated to the new Art Gallery in Kirkcudbright rather than the National Museum in Edinburgh.
What I have found is that tucked away in a footnote to the guidelines the archaeological finds Allocations panel had to follow is a ’national interest’ clause which kicks in when the Panel have to decide where to allocate finds of ‘national importance’ which the National Museum has staked a claim to.
Digging through the digital archives, I found that in 2003, the Scottish Executive (as it was then called) had proposed that any find of national importance should be first offered to the National Museum-
The NMS was established and is funded to fulfil a national function. Finds of international or national importance should be kept intact and offered to the NMS in the first instance. In other cases, the presumption will be that the find will be offered to the local museum.
But a year later this had been changed to ‘Finds of national or international importance should not simply be offered to NMS in the first instance.’ But what should happen instead was not explained.
In 2008 a Code of Practice was published which contained the guidelines for allocating finds. This boldly stated as an ’overarching priority’ that finds should be allocated locally. Then there was an ‘unless…’ which covered finds of national importance. Attached to ‘national interest’ was a footnote. The footnote effectively re-instated the 2003 proposal that the NMS should have first claim on finds of national importance.
The 2008 Code of Practice was revised in 2016, but the section on allocations, complete with explosive footnote, was unchanged.
What this reminds me of is an observation made by Dr (now Professor) Menski when I was in his class on ‘Ethnic Minorities and the Law’ at the School of Oriental African Studies 27 years ago. Dr Menski explained that when analysing legislation, it is important to get beyond the ‘headlines’.
The example he used was the
English Education Reform Act (1988). This contained the requirement that all pupils at state school should attend a daily act of worship ‘wholly or mainly of a Christian character.’ Margaret Thatcher was prime minister then and was keen to promoted her Christian values. See
http://www.independent.co.uk/voices/keeping-faith-in-the-system-1566889.html
But then, several dense paragraphs down, a subsequent clause said ’except where it is not appropriate for the requirement for Christian worship to apply.’ This allowed head teachers of schools in areas where a significant number of pupils were not from ’Christian’ families to opt out of the headline requirement.
Mrs Thatcher and her Cabinet colleagues were pleased that they had done their bit to promote Christianity, but never realised that the Act contained a ‘buried’ clause which negated their intentions.
Likewise, who ever drafted the allocations section of the 2008 Code of Practice managed to slip in a footnote which negated the ‘overarching priority’ apparently given to ‘enhancing local heritage interpretations’ by allocating archaeological finds locally.
Very clever. Not so clever is the fact that Dumfries and Galloway Council and the thousands of people who supported the Galloway Viking Hoard Campaign have wasted public funds (in the Council’s case) and much time and energy (in the Campaign’s case) in pursuit of an impossible outcome.
I could be wrong. There may have been some way in which the Galloway bid could have trumped the Edinburgh bid. But if there was, neither the Council nor the Campaign could find it.
Realistically, as soon as the hoard was found in 2014 and its national and international significance was recognised, there was no way that a request for allocation made by the National Museum of Scotland could be rejected if the Code of Practice was followed.
Note: I only discovered the 2003/ 2004 Scottish Executive Response to Treasure Trove Review documents half way through writing this.
The Doomed Pursuit of the Galloway Viking Hoard
In March 2017, confirmed again in May, an Archaeological Allocations panel made the unanimous decision that a hoard of Viking era material found in a field in Galloway/ south west Scotland would be given to the National Museum of Scotland in Edinburgh. A rival bid, which would have seen the hoard displayed in Kirkcudbright, near where it was found, was rejected.
1. Does this find meet any or all of the ‘national importance’ criteria?
1.1 Yes, the Galloway Hoard meets the criteria.
2. Has the National Museum of Scotland made an application for the Galloway Hoard?
2.2 Yes, it has.
3. Can the National Museum of Scotland “demonstrate fully that there are clear advantages, in serving the national interest, in allocating a find to the NMS rather than to another institution”?
3.1 Given the outcome of the process, the answer is must be ‘Yes’.
Problem Number One
Details of the bids made, which would include the NMS’ demonstration of ‘clear advantages, serving the national interest’ and the Allocations panel’s reasons for accepting the NMS bid have not been made public.
It might be possible to challenge this secrecy on the principal of ‘procedural fairness’. This is one of the criteria listed by the a 2016
Scottish parliament briefing as potential grounds for a Judicial Review.
Judicial review is the process by which a court reviews a decision, act or failure to act by a public body or other official decision maker. It is only available where other effective remedies have been exhausted and where there is a recognised ground of challenge.
Duty to give reasons (page 26 of above)
Statutes often require that decisions made under them should be supported by reasons. It is often said that, statutory requirement apart, there is no general duty to provide reasoned decisions. However, as Munro observes (2007, para 14.30) developments in this area have been such that the sum of exceptions to the general principle probably outweighs the principle itself. Generally speaking, the more important or fundamental the nature of the individual’s right or interest in question, the more likely the principle of procedural fairness will require reasons to
be given.
Problem Number Two
More seriously, could the process of allocation have been biased in the National Museum of Scotland’s favour?
Rule against bias (page 25)
No-one may be the judge of his or her own cause. This strikes at decision making where the decision maker is connected with the party to the dispute or the subject matter of it. In this context, justice should not only be done, but should be seen to be done. Consequently, appearance of bias may be as relevant as actual bias (as well as being more common).
The Allocations Panel (SAFAP) is linked to the Treasure Trove Unit which is based at the National Museum of Scotland. They are funded by the Scottish government via the National Museum
Funding
10. The operational expenses of the SAFAP and TTU comprise mainly staff costs and Administration costs which amounted to around £80,000. These costs are met by grant-in-aid from the Scottish Government to the National Museums of Scotland, which houses the TTU. (page 14 on link)
The key question is - was the NMS involved in drafting the Treasure Trove Unit’s Code of Practice? In particular, was there NMS input in to the section which cover the Allocations panel? [See below]
And of absolutely critical importance, did the National Museum have any involvement in the drafting of this section?
Footnote 5 The role of National Museums Scotland (NMS) will be taken into account in considering allocations of nationally important material for which NMS has made an application. NMS will be required to demonstrate fully that there are clear advantages, in serving the national interest, in allocating a find to the NMS rather than to another institution.
Effectively, for the Hoard to have had any chance of being allocated to Dumfries and Galloway, their ‘local’ bid would have had to demonstrate that it could better ‘serve the national interest’ than the NMS bid.
Note:- trying to answer my own questions I have found that in 2002 a
Review of Treasure Trove Arrangements in Scotland was carried out, published in 2003. Chapter 6 paragraphs 6.28 to 6.49 discussed allocations policy in depth.
The then Scottish Executive responded in October 2003 and then again in November 2004. The relevant part of the 2003 Response stated that finds of national importance should first be offered to the NMS.
The NMS was established and is funded to fulfil a national function. Finds of international or national importance should be kept intact and offered to the NMS in the first instance. In other cases, the presumption will be that the find will be offered to the local museum. As part of its national role, the NMS will look for opportunities to work collaboratively with local museums, providing support and advice and loans of objects for exhibitions.
See
http://www.gov.scot/Publications/2003/11/18314/27549
But in the November 2004 response, this had been changed to read-
Finds of national or international importance should not simply be offered to NMS in the first instance. This view was strongly expressed in the responses, including that from NMS.
See
http://www.gov.scot/Publications/2005/01/20480/49406
Unfortunately I cannot find the ‘strongly expressed’ responses, but there was clearly resistance to offering finds of national importance directly to the National Museum.
Then in 2008 a
Treasure Trove Code of Practice was published. Appendix L of the Code of Practice, which covered criteria for contested applications is word for word the same as Appendix M in the
current (2016) Code of Practice. What is now Footnote 5 is Footnote 4 in the 2008 Code of Practice.
There are only 4 footnotes in the 2008 Code of Practice and 5 in the 2016 Code of Practice. In both versions, the other footnotes are one line references to publications. The footnote in question is therefore an anomaly. Including its contents directly in the text would have made the section on allocations criteria much clearer.
Looking at the difference between the 2003 Scottish Executive Response and the 2004 Response, the footnote has the effect of restoring the ‘national importance/ National Museum, first refusal’ link present in 2003 but banished in 2004.
Conclusion
Was there ever any possibility that Dumfries and Galloway Council’s attempt to have the Galloway Hoard allocated the new Kirkcudbright Art Gallery would succeed?
The short answer is no.
Why, then, did Dumfries and Galloway Council devote so much money, time and energy in pursuit of a different outcome?
From the discussion above regarding the origin of Footnote 5, the problem is that there is a contradiction within the Allocations policy. Originally, in 2003 the then Scottish Executive proposed a straightforward policy where finds of national importance would automatically be first offered to the NMS.
This proposal met with opposition, so it was dropped in 2004. But in 2008 it was effectively re-instated, but surreptitiously in the form of a footnote, not as part of the main body of the text.
If it had been included as part of the main text in the 2008 Code of Practice and again in the 2016 Code of Practice, it would have been much more obvious to Dumfries and Galloway Council that it would not be possible to contest the allocation of the Galloway Hoard once the NMS had indicated its desire to acquire the Hoard.
Indeed, it is impossible to see how any local/regional museum could counter the ‘serving the national interest’ clause buried in the footnote. As the original Scottish Executive Response stated
“The NMS was established and is funded to fulfil a national function.” No other museum can make this claim.
This raises a final question. The Treasure Trove Unit have know since summer 2015 that Dumfries and Galloway Council intended to apply for the Galloway Hoard to be allocated to the Kirkcudbright Art Gallery.
The Treasure Trove Unit should have informed the Council that unless Dumfries and Galloway could demonstrate that the national interest would be better served by an allocation to the region rather than to the National Museum in Edinburgh, their bid would fail.
This did not happen. As a result public funds were ‘misused’ in support of a bid which had no realistic or reasonable chance of success. Likewise the Galloway Viking Hoard Campaign was doomed to failure even before it had begun.
Appendix - the relevant section of the current Code of Practice
Appendix M: Criteria for allocation in the event of multiple applications
Criteria for the allocation of Treasure Trove in the event of multiple
applications from accredited museums
The overarching priority when allocating Treasure Trove is:
Enhancement of local heritage interpretations
There is a presumption that Crown-claimed material will be allocated locally unless a convincing argument for allocating it elsewhere is presented.
The other criteria (unranked) for allocation that must be considered in these circumstances are:
National importance (see footnote 5)
Material may be defined as being of national importance if any or all of these criteria is or are fulfilled:
it is a rare or unique type in a Scottish context or part of an assemblage
containing such material; or
it is of particularly high quality within its type; or
it provides information of major significance (e.g. concerning the
methods used in its manufacture or the nature of its subsequent use)
not normally found on objects of its type; or
the contextual information concerning the object or assemblage is of an
exceptional nature.
Footnote 5 The role of National Museums Scotland (NMS) will be taken into account in considering allocations of nationally important material for which NMS has made an application. NMS will be required to demonstrate fully that there are clear advantages, in serving the national interest, in allocating a find to the NMS rather than to another institution.
