5.2.2 Legislation and codes of practice

Anecdotal evidence suggests the provisions and current enforcement of the law means that the measures that could be used to protect carved stones can prove ineffective in practice (one factor being they were designed to protect the historic environment more generally). Portable stones and gravestones appear to be particularly vulnerable in this respect (Section 5.3.3–4). The risks to loose stones, which frequently fall through legislative and curatorial gaps, are exacerbated by a lack of clarity in the wider sector as to how Treasure Trove and the common law principle of bona vacantia might best be applied to such objects. Furthermore, there is a lack of clarity over how the impending changes to burial legislation, which enables grave reuse and procedures for dealing with apparently 'ownerless' gravestones and structures, could affect carved stones in graveyards. We know through anecdotal evidence that an inability to identify legal owners is an issue that can increase the risks to carved stones. For example, if it is not clear who owns a stone, it may be ineligible for designation, regardless of its potential importance. At the very least, designation registers a stone's significance and may mean that its condition is monitored in some way. One example of the problems arising from unclear ownership is shown by a local authority audit of graveyards in Aberdeenshire, which found an absence of paperwork relating to the ownership of graveyards casting uncertainties over who was responsible for the maintenance of sites (see also Section 5.3.4).

Research plays a critical role in helping us to understand how the law and codes of practice influence the management and protection of carved stones in practice. With this knowledge we can create, implement and evaluate strategies to improve the protection of carved stones. Although many threats are known anecdotally, without a strong evidence base to quantify the actual risks in practice, policy-makers cannot make recommendations to address issues through more effective guidance or, in limited cases, by legislation. Although aspects of property law have a significant impact on the treatment of carved stones, such as through the Treasure Trove process, they were not originally designed with conservation in mind. It is, however, doubtful if there is currently the political will or parliamentary time to change the law relating to the ownership and care of carved stones. Generally speaking, changes to the legislation are most easily effected where good practice is established as the norm and legislation is required to deal with a noncompliant minority.

Scheduled monument and listed building legislation is the primary available means of protecting known carved stones on a statutory basis Scottish Historic Environment Act 2014; Scottish Historic Environment Policy (SHEP) : Historic Scotland 2011; superseded by Historic Environment Policy Statement HESPS): Historic Environment Scotland 2016. Both categories of designation have the capacity to manage proposed changes to carved stones and their immediate environment. Scheduled status can only relate to stones that have been assessed as nationally important, or are part of monuments assessed as nationally important. Listing, as well as protecting nationally important examples, can also apply to regionally or locally significant carved stones. Scheduled status is primarily determined on the grounds of a monument's cultural values, considered in terms of intrinsic, contextual and associative characteristics, including its potential to inform our understanding of the past. The basis for listing is age and rarity, architectural or historic interest, and close historical associations. Neither of these systems is designed to take into consideration public values, and, while scheduling guidance recognises that social value is a part of cultural value (see Section 4.2), the criteria for assessment of national significance are weighted towards more intrinsic considerations related to historic value (Section 4.2). Yet social and public values are highly important to present communities, so these too are desirable to protect for future generations. The scheduling in 2015 of a heart-shaped stone setting known as the Tinker's Heart in Argyll is the first case to explicitly give a significant weighting to the social values of a monument (Figure 95). In general terms, what is currently designated lags behind not just current academic and scientific values, but also behind current understandings of what cultural value is, let alone public values. Some presently undesignated carved stones holding significant social and public values risk being overlooked (and hence are vulnerable), although they may, on (re)assessment, also possess important cultural values too.

Figure 95: Tinker's Heart, Loch Fyne, Argyll. Crown Copyright: Historic Environment Scotland

Given its passive nature, designation is not an effective safeguard on its own. Indeed, it can create an unrealistic sense of security. This is particularly the case where owners and managers do not have sufficient knowledge about the carved stones, about conservation principles and techniques to inform their actions, or indeed the necessary financial resources to act (see Section 5.3). While it imposes the need to secure consent to any changes to carved stones, it does not require nor necessarily prompt their active management, whether through maintenance or works to enhance, or recover, their significance (see for example Figure 96). A carved stone may be only part of a small element of a structure that is listed, or its curtilage, and its presence, significance and designation may be overlooked. There may be a lack of clarity about the extent of a designation which creates grey areas in terms of how laws are interpreted and applied, thus diluting effective protection.

Figure 96: View showing the poor condition of the landscape at St Michael's Churchyard, Cambusnethan, North Lanarkshire. The graveyard, along with three mausolea, is Category B listed. The graveyard contains several late-medieval grave-slabs and an early medieval cross-shaft was discovered here in 1898. ©Susan Buckham

Current legislation creates a loophole for the disposal of carved stones within churches. There is no legal protection for carved stones inside a church in use with Ecclesiastical Exemption, so the protection offered by listed building status will only apply once the church ceases to be in use. As there is no Scottish equivalent of the Pastoral Measures Act 1983, carved stones are therefore vulnerable to disposal if a church is cleared prior to closure.

Other measures affecting carved stones also involve complex issues for their protection. The 'Treasure Trove' process deals with objects where the descendants of the original owner cannot be traced. Rather than being based on statute law (such as the Treasure Act 1996 elsewhere in the UK), the Crown's right in Scotland to portable antiquities lies in the common law principle of quod nullius est fit domini regis, under which treasure and ownerless goods (bona vacantia) can be claimed by the Queen's and Lord Treasurer's Remembrancer (QLTR) on behalf of the Crown as part of the royal prerogative. Although not originally intended for the purpose, since the 19th century the law has been used to acquire portable antiquities for museums, including carved stones. Today, the Code of Practice on Treasure Trove in Scotland (revised in January 2016) is the most authoritative statement of the operation of the procedures for treasure and bona vacantia, together commonly described as 'Treasure Trove'.

The Treasure Trove process in Scotland is more comprehensive than in many other jurisdictions, and is not concerned with the motivations of the people who originally buried them, the material from which they are made, the ownership of the land on which they are found or the means by which they were discovered. It is, however, solely focused on determining the ownership of recently discovered portable antiquities, normally allocating those claimed to the care of accredited museums. The process has therefore been described (e.g. 2010a) as presenting grey areas for the protection of stones as there can be different interpretations about whether it covers stones that have been known for many years, that are part of an owned building, or are located on sites where claims can be made to stones on a heritable basis (e.g. a churchyard). Notwithstanding issues over the extent of public understanding of the system and its enforcement, and although not a mechanism designed to provide care for carved stones, if properly implemented the Treasure Trove process can offer protection by museums for most newly discovered stones.