Memorandum of Understanding

Memorandum of Understanding between the Department of Culture, Media & Sport and the Devolved Administrations

The National Heritage Act 2002 received Royal Assent on 2 May, and came into effect on 2 July. The Secretary of State has issued Directions to English Heritage (EH) under Section 3 of the 2002 Act to exercise certain of her administrative functions in so far as they relate to any ancient monument in, on or under the seabed within the seaward limits of the UK territorial waters. The Directions relate to her administrative functions with respect to the Advisory Committee on Historic Wreck Sites (ACHWS); the archaeological diving services contract (which is administered by the Secretary of State on behalf of the Scottish Ministers, the National Assembly for Wales and the Department of the Environment (DOE) in Northern Ireland); and the Protection of Wrecks Act 1973 (in relation to wrecks situated in UK territorial waters adjacent to England).

The National Heritage Act 2002 also extended English Heritage’s general powers under s33 of the National Heritage Act 1983 to cover ancient monuments in, on, or under the seabed within the seaward limits of the UK territorial waters adjacent to England (which are defined further in SI 2002/2427). These powers include providing grant assistance in respect of any protected wreck within the seaward limits of UK territorial waters adjacent to England, and the provision of advice to any person in relation to any ancient monuments in UK territorial waters adjacent to England.

This MOU sets out in more detail the arrangements in relation to underwater archaeology between English Heritage (“EH”), the Secretary of State for Culture Media and Sport/DCMS, the Scottish Ministers/Historic Scotland, Cadw, as part of the Welsh Assembly Government exercising the functions of the National Assembly for Wales, and DOE. This MOU shall be reviewed at least once every 12 months, or more frequently at the request of any of the parties if the need arises. The final decision on any amendments rests with the Secretary of State, but shall be subject to consultation amongst all the parties.

Advisory Committee on Historic Wreck Sites

The ACHWS is a non-statutory advisory body whose terms of reference include advising on the suitability of wreck sites to be designated under the Protection of Wrecks Act 1973; advising on the issue of licences under that Act; receiving reports about designated wreck sites and giving advice on other general underwater archaeology issues affecting historic wrecks in UK territorial waters. It is a Cross-Border Public Authority under The Scotland Act 1998 and as such, the Secretary of State must consult the Scottish Ministers when she exercises any functions relating to the ACHWS which might affect Scotland and must consult the Scottish Ministers before making appointments to the ACHWS. The Secretary of State has directed EH to exercise on her behalf the functions and responsibility of providing secretarial and administrative support to the ACHWS.

It is agreed that EH shall:

• Arrange at least three meetings of the ACHWS per annum;
• Provide administrative support to the ACHWS (preparing and circulating papers and agendas in advance in consultation with DCMS, Historic Scotland, Cadw and DOE; preparing, agreeing and circulating minutes);

• Provide professional support to ACHWS. EH Head of Maritime Archaeology will act as Secretary to the Committee and will provide briefing to the Chairman in advance of each meeting;
• Provide DCMS, Historic Scotland, Cadw and DOE with copies of all papers relating to ACHWS meetings and of any correspondence outside meetings;
• Reimburse travel expenses incurred by ACHWS members in attending meetings;
• Communicate with ACHWS members and the other heritage agencies outside meetings by correspondence as required;
• Consult the ACHWS about any matter when requested to do so by DCMS;
Recommend a list of possible candidates for appointment to ACHWS vacancies taking into account Cabinet Office guidance on public appointments;
Draft the ACHWS Annual Report in consultation with ACHWS members, DCMS, the Scottish Ministers, Cadw and DOE;

Archaeological Diving Contract

It has been usual practice for the Secretary of State to enter into a contract for archaeological diving services relating to sites of archaeological interest in UK territorial waters. This contract is due to expire at the end of March 2003. The Secretary of State enters into the contract as agent for the Scottish Ministers, the Welsh Assembly Government and DOE and the contractor provides advice on particular sites of interest directly to the relevant heritage departments. The Secretary of State has directed EH to exercise her functions of procuring and managing archaeological diving services on her behalf and on behalf of the Scottish Ministers, the Welsh Assembly Government and DOE.

EH shall:

• Run the tender exercise to appoint the new contractors upon expiry of the present contract, in compliance with Government and public procurement regulations. All documentation and short-lists relating to the exercise to be drawn up in consultation with the Secretary of State, the Scottish Ministers, the Welsh Assembly Government and DOE. In particular, the terms of the contract shall:
- require the contractor to carry out a schedule of works agreed annually between all parties;
- permit DCMS, Historic Scotland and Cadw and DOE to contact the contractor directly to discuss any matters concerning designated wreck sites or potential designated wreck sites within their respective jurisdictions;
- require the contractor to supply adequate and competent advice and technical support to the heritage agencies, DCMS (concerning sites within their respective jurisdictions) and the ACHWS;
On behalf of SoS (acting on behalf of the Scottish Ministers, the Welsh Assembly Government and DOE), appoint the successful contractor to undertake the contract after the expiry of the present contract, after consulting with DCMS, the Scottish Ministers, Cadw and DOE;
• Pay quarterly claims by the contractor and fund such capital equipment as is deemed necessary;
Comply with any instructions issued by DCMS (acting on behalf of the Scottish Ministers, the Welsh Assembly Government and DOE) in relation to the management of the contract;
• consult with DCMS, Historic Scotland, Cadw and DOE on any guidance notes to be issued to the contractor;
Run future tender exercises on a rolling basis in compliance with Government and public procurement regulations and in compliance with any instructions received from DCMS (acting on behalf of the Scottish Ministers, the Welsh Assembly Government and DOE).
 
Functions under the Protection of Wrecks Act 1973

The Secretary of State is responsible for designating restricted areas around sites which are (or may be) wrecks of historic, archaeological or artistic importance and for issuing licences to authorise certain activities in restricted areas which would otherwise constitute a criminal offence. These functions are exercised by the Secretary of State in relation to wrecks in UK territorial waters adjacent to England and Northern Ireland, and have been devolved to the Scottish Ministers and the Welsh Assembly Government in relation to wrecks in UK territorial waters adjacent to Scotland and Wales respectively. The following activities will be carried out by EH as a result of the Directions issued under s3 NHA 2002 and EH’s powers under the NHA 1983.

Designation and de-designation of Sites

In relation to wreck sites in UK territorial waters adjacent to England, EH shall:

• Consider applications and recommendations for designation and de-designation, consider the merits of each case, and consult the ACHWS, the  holder of the archaeological diving services contract and other interested parties as appropriate and submit a report on these matters to the Secretary of State including copies of key correspondence and documents;
• Provide advice to the Secretary of State in relation to wrecks in UK territorial waters adjacent to England (taking into account any consultation with the ACHWS, holder of the archaeological diving services contract and other organisations as appropriate);
• Supply any further information or documents relating to any decision which the Secretary of State requests, and carry out any further correspondence as directed by the Secretary of State;
Draft and publish a joint press notice with DCMS;
• Circulate the final version of any Order to consulted organisations, ACHWS, and any other persons who made representations, in particular the Hydrographic Office of HM Navy, the Receiver of Wreck, the holder of the diving archaeological contract and local County Archaeologist, Coastguard and Police Force.

Emergency Designation of Sites

In relation to wreck sites situated in territorial waters adjacent to England EH shall proceed as above except that it shall:

• Consider whether the urgency of the case requires consultation to be curtailed or waived;
• Prepare a draft Explanatory Memorandum for the Joint Committee on Statutory Instruments explaining why the order is coming into force in breach of the 21 day rule.

Licensing of designated sites

In relation to wreck sites situated in territorial waters adjacent to England, EH shall:

• Consider applications for licences, consider the merits of each case, and consult the ACHWS, the holder of the archaeological diving services contract and other interested parties as appropriate and submit a report on these matters to the Secretary of State including copies of key correspondence and documents;

• Provide advice to the Secretary of State in relation to wrecks in UK territorial waters adjacent to England (taking into account any consultation with the ACHWS, the holder of the archaeological diving services contract and other interested organisations as appropriate);
• Provide the Secretary of State with a draft licence if EH recommend that a licence should be issued;
• After the Secretary of State has made a decision to grant a licence, provide a copy of it to the applicant and archaeological diving services contractor;
• At the request of DCMS, correspond with licence applicants whose applications have been rejected by the Secretary of State;

Guidance

EH shall, in consultation with DCMS, Historic Scotland, Cadw and DOE, draft and publish Guidance for divers and archaeologists in relation to sites in UK territorial waters.

Administration of funding to existing Heritage Grant Fund grant-aided bodies

EH already provides Heritage Grant Fund grants in respect of archaeological work on land in England. In exercise of its powers in the NHA 1983, EH shall provide grant aid to the Hampshire and Wight Trust and the NAS on a quarterly basis for remainder of the current grants. They will consider applications for new grants for underwater archaeology matters in accordance with the usual practice.

Interpretative Panels

DCMS has been responsible for placing interpretative panels in relation to wreck sites around the English coast. In exercise of its powers under s33 NHA 1983 in relation to wreck sites situated in territorial waters adjacent to England EH shall maintain interpretative panels near designated wreck sites as appropriate.

Marker Buoys

DCMS has been responsible for placing and maintaining marker buoys on some designated wreck sites around the English coast. In exercise of its powers under s33 NHA 1983 in relation to wreck sites situated in territorial waters adjacent to England EH shall maintain existing buoys and consider the future establishment of marker buoys or similar equipment at other designated wreck sites, as appropriate.

Ongoing Underwater Archaeological Work

In exercise of its powers under s33 and s33(C) NHA 1983 in relation to underwater archaeological sites situated in territorial waters adjacent to England EH shall oversee and provide grant aid to archaeological work below the low water mark.