New European Union import licensing regulations for cultural property risk blighting legitimate trade in items cleared for sale under the UK Treasure Act. So warns Hetty Gleave, the deputy chair of the Treasure Valuation Committee, who is a partner at Fladgate LLP and a specialist lawyer in cultural property law.
The difficulty centers on the incompatibility of documents issued on behalf of the Crown in releasing items for private ownership with those likely to be required under Regulation 2019/880 in respect of cultural goods imported to the EU. Gleave spotted the problem when reviewing documents published as part of the consultation on the regulation, which ends on 21 April 2021.
“98% of declared treasure in the UK is found by metal detectorists, often in farmland and open rural areas,” she explains. “If the artefacts meet the current definition of Treasure as set out in the Treasure Act 1996, then title in them automatically vests in the Crown and national and local museums are asked if they wish to acquire them as part of their collection. If no museum wishes to acquire an item, then the Crown will disclaim it and it will be returned to the finder and/or landowner who then has the ability to sell it on the open market.”
When that happens, any disclaimed item is returned to the finder/landowner together with a letter from the Treasure Secretariat at the British Museum confirming that the finder/landowner can come to collect it. They are then free to sell it on the open market.
The problem comes with the documentation required to prove title ownership. Under Regulation 2019/880, if the goods were “created or discovered” in the UK then anyone seeking to import them into the EU must prove they have title and furnish as much evidence as possible demonstrating their “history and ownership of the object through which its authenticity and ownership can be determined”.
The Treasure Secretariat letter bears the Treasure reference number which correlates to the curatorial report of the item providing a full description and photograph, so the two can be matched. However, it does not specifically state that title has been transferred from the Crown to the finder/landowner.
“The list of documents that the importer is required to produce in support only refers to ‘declarations under oath’, as a catch all, but does not include treasure items where provenance is clearly unknown and the only relevant documentation relating to ownership does not expressly confirm that title has passed from the Crown, even though it may be implied,” Gleave says.
The EU regulation does not address treasure items specifically and, under the UK Treasure rules, apart from the Secretariat letter there is no other way for a finder/landowner who has acquired title from the Crown to demonstrate provenance of the object.
Depending on how the law is interpreted, that could cause serious problems for anyone legitimately trying to export a cleared treasure item for sale in the EU.
“In addition, what will happen to items that do not strictly qualify as treasure but have been found by detectorists or others, and are undoubtedly treasures in their own right, a notable example being the exquisite copper alloy Crosby Garrett Roman cavalry helmet?” Gleave asks.
“They will not have been through the current treasure system but are undoubtedly cultural goods which the Regulation is intended to protect and will have no provenance history or official documentation to verify ownership.”
Several other issues have arisen during the consultation, from the lack of clarity over terms governing compliance and the leeway given for customs to delay clearance to the sheer volume of paperwork required and protocols for marking goods for identification purposes.
In 2020 the database of the Portable Antiquities Scheme reached the goal of 1.5 Million Archeological Objects.
This is the official PAS website.
This article was first published in the Art Newspaper.