Explanatory Memorandum to the Treasure Act 1996: Code of Practice (3rd Revision) 2023
Updated 13 October 2023
© Crown copyright 2023
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: psi@nationalarchives.gov.uk.
Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
This publication is available at https://www.gov.uk/government/publications/treasure-act-1996-code-of-practice-3rd-revision/explanatory-memorandum-to-the-treasure-act-1996-code-of-practice-3rd-revision-2023
1. Introduction
1.1 This explanatory memorandum has been prepared by the Department for Culture, Media and Sport and is laid before Parliament by Command of His Majesty.
2. Purpose of the instrument
2.1. The draft Treasure Act 1996: Code (3rd Revision) (the draft Code) has been prepared in accordance with section 11 of the Treasure Act 1996 (the Act). It updates and revises the previous Treasure Act 1996: Code of Practice (2nd Revision) which was published in 2008. The draft Code sets out the principles and practice to be followed by the Secretary of State when exercising functions under the Act and provides guidance for finders, landowners, curators and administrators on how to meet their obligations under the Act. The revisions reflect changes to the treasure process to increase its efficiency, and the proposed introduction of a new class of treasure, and exclusion of certain objects from the definition of treasure, by the Treasure (Designation) (Amendment) Order 2023, which was laid before Parliament in draft on 20 February 2023.
3. Matters of special interest to Parliament
Matters of special interest to the Joint Committee on Statutory Instruments
3.1. None.
4. Territorial application
4.1. The draft Code applies in England, Wales and Northern Ireland.
5. European Convention on Human Rights
5.1. The Minister for Arts and Heritage, Lord Parkinson of Whitley Bay, has made the following statement regarding Human Rights:
In my view the provisions of the Treasure Act 1996: Code of Practice (3rd Revision) are compatible with the Convention rights.
6. Legislative context
6.1. The Act replaced the common law of treasure trove in England, Wales and Northern Ireland. Under the Act, objects which fall within the definition of treasure are owned by the Crown when found (or by the franchisee, if there is one), subject to prior interests and rights, such as those of the object’s original owner or their heir. A person who finds an object they believe to be treasure must notify the local coroner within 14 days. The coroner has the power to hold an inquest to decide whether the object is treasure for the purposes of the Act.
6.2. Objects that have been found to be treasure may be transferred by the Crown to museums. Finders and landowners are eligible to receive a reward, paid by the acquiring museum. The amount of any reward (up to the object’s market value) and to whom it should be paid is determined by the Secretary of State. The Secretary of State receives advice from an independent committee, the Treasure Valuation Committee, for this purpose. If a museum does not wish to acquire a find, the Secretary of State can disclaim it and it is returned to the finder with the landowner’s consent.
6.3. Under section 11 of the Act the Secretary of State must publish a Code of Practice, keep the Code under review, and revise it when appropriate. The Secretary of State must consult such persons as they consider appropriate before preparing a revised Code. Any proposed revision of the Code must be laid before Parliament, and cannot come into force until approved by a resolution of each House. Previously, a separate Code was prepared for Northern Ireland under section 11(8)(b) of the Act, to reflect the Historic Monuments and Archaeological Objects (NI) Order 1995, which limits the use of metal detectors and archaeological digging in Northern Ireland. The new draft Code applies to England and Wales, and Northern Ireland, with appropriate caveats.
7. Policy background
What is being done and why?
7.1. The Code is being updated and revised to clarify the advice and guidance for users of the treasure process, reflect the current administrative practices, especially where these differ between the three nations, and make the process more efficient. It will also reflect the changes in the definition of treasure proposed in the draft Treasure (Designation) (Amendment) Order 2023.
7.2. The last revision to the Code was made in 2008. Since then the environment in which the Act operates has changed radically with the growth of interest in metal detecting (over 90% of treasure finds are made by detectorists), an increase in treasure cases of over 50% from 778 to 1071 (Treasure Act 1996 Annual Report 2022) and the development of online markets.
7.3. The current Code provides an administrative framework for the treasure process, however it does not reflect the different administrative systems between the three nations. In addition it does not provide clear deadlines for the different elements of the treasure process. The draft Code has introduced the following changes to help improve the process.
7.4. There is now a 28 day time limit for museums to express an interest in acquiring a find. This can be extended at the discretion of the Treasure Registry. In addition, museums are now required to carry out due diligence on the likely financial cost of a find. An increased emphasis on public interest is also reflected in priority given to museums which are prepared to keep hoards together, preserving archaeological information.
7.5. A new process for disclaimed finds has been introduced. Nearly half of the 1071 treasure finds in 2020 were disclaimed (Treasure Act 1996 Annual Report 2022). In order to address a delay in these being returned to the finder, landowners now have a deadline of 28 days to object to the return.
7.6. There is now a clearer process for reviews by the Treasure Valuation Committee. The draft Code introduces a 28 day time limit for evidence, a general limit of the two views for most finds and a condition that new evidence must be submitted for the Committee to review a case.
7.7. There are now clearer administrative deadlines for providing basic information. Under the draft Code reward recipients now have 6 months to provide bank details in order to receive their reward. After that time the money will be returned to the museum.
7.8. The draft code has been thoroughly redrafted to be more accessible and easier to read by a wide range of users.
7.9. The draft Code has been drafted in consultation with the administrators of the treasure process in all three nations, including the Treasure Registry at the British Museum who act as a Secretariat for the Treasure Valuation Committee.
8. European Union withdrawal and future relationship
8.1. This instrument does not relate to withdrawal from the European Union / trigger the statement requirements under the European Union (Withdrawal) Act.
9. Consolidation
9.1. The draft Code does not consolidate any other instrument.
10. Consultation outcome
10.1. Section 11(4) provides that the Secretary of State must consult such persons as they consider appropriate before revising the Code. Proposed changes to the Code of Practice were included in a wide ranging consultation on the Act that ran between 1 February and 30 April 2019. The consultation document was published on gov.uk and included 16 questions on specific areas of proposed changes to the current Code: the procedure when a find has been reported to a coroner and treasure inquests, museum expressions of interest, the valuation of treasure, rewards and the speed of handling cases. The government response document was published in December 2020.
10.2. DCMS officials carried out a full assessment of the responses to the consultation and the draft Code reflects this assessment. There were 1461 valid responses to the whole consultation. Responses to the specific questions on the Code were around a third of total responses. There was an average of 582 responses to each question on the Code, ranging between 805 and 486.
10.3. These responses were generally welcoming with regard to introducing more definite time limits into the treasure process, limiting Treasure Valuation Committee reviews and asking museums to undertake due diligence. However, there was some concern that the deadlines might not be flexible enough to accommodate circumstances such as where museums had applied for external funding, and so a measure of discretion has been included in the draft Code where the Treasure Registry feels deadline extensions are appropriate.
10.4. Other proposed changes in the consultation, such as the designation of a new class of treasure based on significance, and exemption of Church of England finds, which are being introduced by the Treasure (Designation) (Amendment) Order 2023, have been reflected in the draft Code.
11. Guidance
11.1 Contacts and online links for further guidance on the treasure process are included within the draft Code.
12. Impact
12.1. There is no, or no significant, impact on business, charities or voluntary bodies.
12.2. There is no, or no significant, impact on the public sector.
13.3 A full Impact Assessment has not been prepared for this instrument because the annual impact on business is less than £5 million (as measured by the equivalent annual net direct cost to business, EANDCB).
13.4. Summary of business impact: This has been assessed on the basis that Code users familiarising themselves with the Code will also have to read the additional guidance for the new class of treasure. There will be some small familiarisation and on-going costs to the private sector (Archaeologists, Antique dealers and auctioneers and Independent museums) as well as the public sector (public sector museums and coroners). There will be a total net present cost over the appraisal period of approximately £.8m (2020 prices).
13.5. We consider that reputable dealers will already be aware of the treasure process and consequently will be making enquiries where an object could be treasure. Savings of a similar amount will be realised by museums that acquire the items now classed as treasure. It is essentially a transfer between them. The EANDCB is estimated to be £0.4m. This is below the £5m de minimis threshold for a full impact assessment.
13. Regulating small business
13.1. The legislation applies to activities undertaken by all businesses in England, Wales and Northern Ireland without exemptions.
13.2. There are effects on small and micro businesses, which are unavoidable due to the policy objective and the business demographics of the target sector. Mitigations were discounted on the grounds that they would prevent the objective of the policy from being achieved.
14. Monitoring and review
14.1. Section 11(1)(b) of the Act requires the Secretary of State to keep the Code under review. The performance of the treasure process is monitored yearly in the statutory Treasure Act 1996 Annual Report and DCMS officials work closely with the Treasure Registry, the curators who administer treasure in Wales and Northern Ireland and other stakeholders. DCMS are also considering further changes to the treasure process, as outlined in the government response document, and these would entail a further review of the Code.
15. Contact
15.1. Rosie Weetch at the Department for Culture, Media and Sport (telephone: 07547 967282 or email: rosie.weetch@dcms.gov.uk) can be contacted with any queries regarding the instrument.
15.2. Helen Whitehouse, Deputy Director for Museums and Cultural Property, at the Department for Culture, Media and Sport can confirm that this Explanatory Memorandum meets the required standard.
15.3. Lord Parkinson of Whitley Bay, Minister for Arts and Heritage at the Department of Culture, Media and Sport can confirm that this Explanatory Memorandum meets the required standard.