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Society of Antiquaries of SCOTLAND

Royal Museum . Chambers Street . Edinburgh EH1 1JF www.socantscot.org Scottish Charity number SC 010440

Barry Matthews Esq Scottish Executive 1-A North Cultural Policy Victoria Quay Edinburgh EH6 6QQ

March 2007

RESPONSE TO DRAFT CULTURE (SCOTLAND) BILL FROM THE SOCIETY OF ANTIQUARIES OF SCOTLAND Thank you for the letter of 13 December 2006 from the Minister for Tourism, Culture and Sport inviting the Society of Antiquaries of Scotland to respond to your consultation on the draft Culture (Scotland) Bill. The Society's response is in three parts because the Bill will directly affect the operations of the Society as well as covering various other matters within its remit. Initially, we would like to respond to the Consultation Questions in sections four and five of your paper: National Collections Do you agree that the National Collections should remain as constitutionally separate centres of excellence? Yes. Do you think the powers and functions proposed for the Collections in the draft Bill are right? If not how would you improve them? We think the powers and functions proposed are right but, at least in the case of NMS Trustees, we believe the qualifications for appointment should for some Trustees include knowledge that reflects the principal subjects of the collections of the NMS, and not just of the general functions of the Board. Do you agree that the Faculty of Advocates should be able to contribute to the board of the national Library by having at least one representative? Yes, we therefore, find it impossible to understand why a Fellow of this Society is not to be included among the Trustees of the National Museums of Scotland.

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This Society stands in precisely the same position vis a vis the Mueum as the Faculty of Advocates to the National Library. Its collections formed the basis of the National Museum of Antiquities incorporated within the National Museums in 1851. The present situation therefore, appears to be discriminatory. Do you agree that the Collections have the appropriate powers to obtain, loan and dispose of objects for or from their collections? Yes, the Society would of course expect to be consulted if it were proposed to dispose of items gifted to the State from its collections in 1851. What do you think of the name 'National Record of Scotland? We consider that this name does not adequately describe the nature and function of the body, and the records it holds on behalf of the Nation. We understand how difficult it is to encompass the functions of this particular body but suggest something along the lines of "National Heritage Record of Scotland". Dealing in Tainted Cultural Objects Do you agree that an offence similar to that in the 2003 Act should be introduced in Scotland? Yes. PART 1. MATTERS AFFECTING THE OPERATION OF THE SOCIETY OF ANTIQUARIES OF SCOTLAND 1. There are three provisions in the National Heritage (Scotland) Act 1985 that directly affect the Society and the Bill will alter two of them. Society Offices 2. Section 3(4) of the 1985 Act empowers the Trustees of the National Museums of Scotland (henceforth NMS) to allow their premises to be used by other persons connected with their functions. This is the provision under which the Society's offices are located in the National Museum of Scotland, in accordance with the agreement of 1851. While this subsection of the 1985 Act will be repealed, it will be replaced by Section 18(2)j of the Bill which will allow the property of the Trustees to be used by other persons. 3. The Society is content with this change, so long as the NMS continues to provide accommodation in accordance with our long-standing agreement. Access to the NMS Library 4. Section 3(5) of the 1985 Act entitles Fellows of the Society to free access to the library of the NMS in recognition of the fact that the Society's own library formed the core of the present library. This subsection will be repealed and will not be replaced, so Fellows will lose their statutory right of access to the museum library.

5. While the Society recognises that details such as access to the library may no longer be regarded as suitable subjects for primary legislation, the fact remains that the Trustees' library contains many books originally the property of the Society and that the library continues to benefit each year from free receipt of numerous archaeological journals from throughout Britain and Europe in exchange for the Proceedings of the Society. The Society would therefore regard it as essential that Fellows do continue to have access to the library, as a right and not as a privilege. But we hope that this can be achieved by a binding agreement with the NMS Trustees and, so long as such an agreement was in place by the time the Bill is considered in the Scottish Parliament, the Society would not object to repeal of the statutory provision. Representation on the Board of the NMS 6. Paragraph 3(4) of Part I of Schedule 1 to the 1985 Act requires Scottish Ministers to include among the Trustees of the NMS at least one Fellow of the Society of Antiquaries of Scotland. This paragraph will be repealed and replaced by Paragraph 2(2) of Schedule 2 to the Bill which simply requires that Ministers appoint Trustees who have the skills, experience and personal qualities appropriate to the functions of the Board set out in Section 15(3) of the Bill. Those functions are essentially to collect, preserve and display objects of the past and especially objects pertaining to Scotland. 7. Paragraphs 4.2 and 4.3 in section four of the Consultation Document explain that the Bill updates procedures for appointments to reflect Executive policy and guidance from the Commissioner for Public Appointments in Scotland so that, as a general principle, places on public bodies are no longer reserved for particular organisations. The Document acknowledges that such provision is presently made in recognition of contributions that organisations may have made to what are now public bodies, such as the Faculty of Advocates whose gift of books to the nation provided the basis for the National Library of Scotland. Accordingly, Ministers are proposing to make membership of the Faculty an essential criterion for one member of the Library Board after the Bill has removed the Faculty's statutory right to representation. 8. The Executive's argument that in making appointments to public bodies Ministers should be free from the constraint of ensuring particular organisations are represented appears to be essentially the same as advanced by the then Conservative Government during the passage of the 1985 Act which, as originally drafted, would have removed altogether the Society's current representation on the Board of the NMS. However, this policy was vigorously criticised and Ministers conceded that they should recognise the unique relationship between the Society and the NMS, whose archaeological and Scottish historical collections had been founded by the Society, and guarantee the Society's right to have a Fellow among the Trustees. 9. The Society acknowledges that arrangements for public appointments have become more formalised since 1985, but would point out that the Society's collections are still the basis of the archaeological and historical holdings of the NMS. In making appointments under the Bill, Ministers would ensure that members could discharge the function set out

in Section 15(2). These functions are set out in general terms: management, care and preservation, exhibition and interpretation, etc, and not in terms of the subjects of the collections. That means Ministers would be able appoint a Board without anyone with any knowledge of the archaeology or history of Scotland, which the Society would utterly deplore. 10. We note that Ministers have undertaken to ensure that the Faculty of Advocates will continue to be represented on the Trustees of the National Library. We believe it is essential for the proper care and management of the NMS, including effective provision of wider access to the collections, that the Trustees include at least one member capable of advising the other Trustees about archaeological and historical matters, and sufficiently expert in archaeology or history to be capable of commenting and advising with authority on the professional work of the curators of the Museum's archaeological and historical collections. This could be achieved either administratively, in the same way as for representation of the Faculty of Advocates on the Board of the National Library, or in statute by amplifying the functions of the Trustees or the provisions for membership of the Board to specify knowledge of the archaeology of Scotland. 11. Since Ministers propose to enable the Faculty of Advocates to be represented on the Board of Trustees of the National Library, and the relationship between the Society of Antiquaries and the NMS is essentially the same as that between the faculty and the Library, the Society is strongly in favour of similar representation on the Board of Trustees of the NMS. PART 2. OTHER MATTERS WITHIN THE REMIT OF THE SOCIETY OF ANTIQUARIES OF SCOTLAND Local Cultural Entitlements and Cultural Planning Statutory Duty of Care for the Historic Environment The Society considers that this Bill would be the correct place for the inclusion of a statutory duty of care for the historic environment, applicable to all public bodies and for all projects, procedures and practice in receipt of public grant. The Society also favours the suggestion that the provision of an Historic Environment Service (provision of a publicly accessible monument record and, importantly, the appropriate services) is at least one Local Cultural Entitlement that should be made statutory for Local Authorities. This will go a long way to encouraging and promoting public access to the historic environment. National Record of Scotland The Society is strongly in favour of the continued existence of a separate body to undertake the functions of the Royal Commission on the Ancient and Historical Monuments of Scotland and we warmly welcome the proposed creation of the National Record of Scotland or, preferably, a more explicitly named body. We suggest the "National Heritage Record of Scotland". We believe the general powers granted to a

cultural body in the Bill are appropriate, so long as they do not dilute the protection and promotion of the historic environment. Dealing in tainted cultural objects The Society warmly supports the introduction in Scotland of legislation against dealing in tainted cultural objects. We note that the meaning of 'tainted cultural object', as set out in Section 24(2) of the Bill, appears to include only objects recovered from buildings, structures or monuments. However, objects of archaeological value were not deposited only in buildings, structures or monuments. They were often intentionally deposited in rivers or streams or other natural places, such as rocks, where there was no building, structure or monument, or where no trace of any building, structure or monument can be seen today. Buildings, structures or monuments might also have been destroyed, by ploughing or construction work for example, before objects of archaeological value were recovered. Or objects of archaeological value could simply have been recovered without their relationship with any building, structure or monument having been sought or recognised. In all these circumstances, it is possible that removal of the object could in some circumstances or jurisdictions have constituted an offence. The Society would wish the Executive to consider amplifying the definition of 'tainted cultural object' so that it is not restricted to objects recovered from buildings, structures or monuments, but includes specific reference to Scottish objects, and links to the Scottish Treasure Trove system. We would favour taking direct advice from the Scottish Archaeological Finds Allocation Panel on the precise wording of additions to this part of the Bill. The Society has seen and fully supports the SAFAP response to this part of the Bill. Membership of cultural bodies In Part 1 of our response, the Society has noted that in making appointments to the Boards of the cultural bodies Ministers would have to ensure that members could discharge the functions set out in Section 15(2). But these functions are set out in only general terms: management, care and preservation, exhibition and interpretation, etc, and not in terms of the subjects of the collections. That means Ministers would be able appoint a Board without, for example, anyone with any knowledge of the archaeology or history of Scotland, which would seem to the Society to defeat the object of having a Board of Trustees. As an issue separate from representation of the Society among the Trustees of the NMS, we would, therefore, strongly urge that qualifications for membership of the Board of the NMS at least should be amplified to ensure that some members were expert in the subjects covered by the main collections of the NMS. We are not suggesting that these particular subjects should be listed in the Bill, but it must be possible to draft provisions that are not essentially circular in referring only to the general functions of the Board.

PARTS. SUMMARY The Society of Antiquaries of Scotland welcomes the Culture (Scotland) Bill and the opportunity to comment on it. We believe that Local Cultural Entitlements are a good idea, but that access to a local Historic Environment Service, including access to a fully resourced sites and monuments record, should be made statutory. We also favour the inclusion, within this Bill, of a statutory duty of care for the historic environment, applicable to all local authorities, public bodies and for all projects, procedures and practise in receipt of a public grant. We agree that the National Collections remain as constitutionally separate centres of excellence and that the proposed powers are correct. We suggest that the new name for the separate body to undertake the functions of the RCAHMS be the "National Heritage Record of Scotland", which better describes the nature and function of the body. We also agree that the Faculty of Advocates should be able to contribute to the board of the National Library by having at least one representative, with the proviso that the Society of Antiquaries of Scotland be accorded the same rights on the board of the National Museums of Scotland, since the Society has the same relationship to the NMS. To this end we are content with the repeal Section 3(4) of the 1985 Act, so long as the NMS continues to provide accommodation for the Society in accordance with our longstanding agreement. We also regard it essential that our Fellows continue to have the right of access to the NMS library. The Society supports the introduction of an offence, similar to that in the 2003 Act, in Scotland with regard to dealing in tainted cultural objects, but also believe that there should be specific reference to Scottish objects and a direct link to the Scottish Treasure Trove system, which may help to consider objects of value being removed illegally from locations that are currently not described in this part of the Bill (i.e. buildings, structures or monuments). The Society also wishes to urge the incorporation of provisions in board membership of cultural bodies to include qualifications in the main areas in which the cultural body operates. For example, we would recommend that some members of the board of the National Museums of Scotland were expert in the subjects covered by the main collections of the NMS.

I also enclose the Respondent Information Form.

ROGER MERCER QBE FSA Scot President

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199 Society of Antiquaries of Scotland