Draft Heritage (Jersey) Law 202- (P.121/2025): comments

STATES OF JERSEY

DRAFT HERITAGE (JERSEY) LAW 202- (P.121/2025): COMMENTS

Presented to the States on 20th February 2026

by the Economic and International Affairs Scrutiny Panel

STATES GREFFE

2025  P.121 Com.

COMMENTS

The Draft Heritage (Jersey) Law 202- [P.121/2025] (hereafter referred to as "draft Law") was lodged au Greffe on 24th December 2025 by the Minister for Sustainable Economic Development (hereafter referred to as "the Minister") and is scheduled for debate on 24th February 2026.

Purpose of the Draft Law

The draft Law seeks to provide  Jersey  with a  comprehensive  framework for the reporting, assessment and protection of archaeological objects. It replaces the Island's current reliance on customary law and voluntary reporting and seeks to align Jersey with international obligations. The Minister emphasised this intent in correspondence stating:  

"The  draft  Heritage  (Jersey)  Law  202-  is  being  developed  to  secure  Jersey's archaeological  heritage  through  reporting,  recording  and  preserving  objects  of archaeological and historical significance to the Island."1

The draft Law provides provisions to complement both the Heritage Strategy as well as assisting Jersey in implementing several relevant international conventions, relating to heritage and antiquities, and provides for a platform for enacting potential future conventions in this area. The draft Law therefore aims to close gaps by:

• Protecting  Irreplaceable  Heritage:  Without  a  clear  legal  framework, archaeological objects and associated information are vulnerable to damage, dispersal, or private sale, undermining Jersey's cultural legacy, while valuable information from non-designated archaeological sites may be destroyed.

• Closing Legal Gaps: Existing reliance on unwritten conventions provides no statutory  obligation  for  reporting  finds,  creating  uncertainty  for  finders, landowners, and authorities.

• Meeting International Obligations: Jersey is a signatory to several treaties and conventions that require robust heritage protection which this draft Law seeks to deliver.

• Promoting Transparency and Fairness: The draft Law would introduce clear processes for reporting, ownership, and rewards, balancing the interests of finders, landowners, and the public.

• Supporting Research and Education: By creating a Historic Environment Record and ensuring finds are preserved in public collections, the draft Law will help safeguard knowledge for scientific study and public benefit.

• Preventing Future Disputes: The draft Law will also provide a statutory framework  to  reduce  ambiguity  and  potential  future  legal  disputes  over ownership and handling of significant finds.2

1 Letter-MSED-to-EIA-re-Quarterly-Follow-up-Questions-29-July-2025 2 Letter-MSED-to-EIA-re-Heritage-Law-12 February 2026

Panel Observations

The Panel received a briefing in January 2026 from government officers, who explained the draft Law, and subsequently wrote to the Minister in February 2026 with several questions. The information provided during the briefing, together with the Minister's response, has assisted the Panel in drafting these Comments.

Consultation Process

The government initiated a consultation between July and September 2025, which received 37 responses, including from the Association for Metal Detecting Sport, the Chartered Institute for Archaeologists, and the Council for British Archaeology. The consultation response paper published in January 2026 stated that more than 25 amendments were made to align the legislation with feedback. The Panel notes from the response paper that there was general support for the proposals including definitions used, the reporting timeframe and the principle that antiquities should be publicly owned.

The Panel asked what engagement had been held with representatives of the detectorist societies in the island, particularly as they are a group who would be directly affected by the draft law. The Panel was informed that representatives from the Jersey Metal Detecting Society were invited to a symposium with key speakers from the UK on approaches to heritage legislation further explaining:

"After this, it was felt better to leave law drafting to the policy makers and share the draft with detectorists when the legislative working group was comfortable with the draft legislation. Informally, before the start of the public consultation, a number of detectorists have had sight of the drafts and have signalled their contentment with the Government's approach." [3]

The Panel is satisfied that the government's consultation process was proportionate and inclusive, and notes that the feedback received demonstrated broad support for the draft Law and its underlying principles.

Operation of the Draft Law

The Panel sought to understand how the draft Law would operate in practice. The Minister explained that the process should be as easy as possible with a maximum amount of control contrasted with a minimum amount of bureaucracy. He also explained that: "The accompanying Code of Practice, which includes the process flowchart, is there to guide those who discover finds and will accompany the proposed draft legislative bundle." [4]

The Panel notes that the draft Law includes a requirement to report archaeological objects within 14 days of their discovery. The Panel queried how enforceable this requirement would be and sought clarity on the matter. The Minister acknowledged that this may present enforcement challenges but advised that the provision mirrors the UK Treasure Act 1996. He further noted that the guidance within the Code of Practice would help individuals understand what is expected of them in order to comply.

Customary Law and Treasure Trove

The Panel sought clarification regarding which elements of customary law remain within the draft Law and the reasons for their retention. The Minister advised that the only customary provision preserved in the draft Law is the Crown's longestablished right of treasure trove. In the draft Law, treasure trove is defined as an object composed of more than 50% gold or silver, deliberately hidden with the intention of later recovery, and with no identifiable owner or heirs.

The  Minister  explained  that  although  abolition  of  treasure  trove  was  considered, reflecting the approach taken in England and the Isle of Man, those jurisdictions still effectively retain treasure trove as a category of object, because their statutory definition of "treasure" now encompasses what would historically have been considered trove. By contrast, Scotland adopts a different model, under which all archaeological finds fall to the Crown as bona vacantia.

The Panel was further advised that there are constitutional reasons why altering baseline customary law should be avoided at this stage: "Moreover, it is ultimately a matter for the Crown whether it wishes to dispose of its right – a negotiation which, even if considered desirable, would likely take many years. Thus, what the draft Law does is accommodate the Crown right in a manner consistent with the ambition to ensure relevant objects end up in public collections for public benefit."5

The Panel understands that in practice, treasure trove will be held in trust by the Minister and treated in the same way as "Jersey National Antiquities," subject to appropriate consultation with the Receiver General.

The Panel also asked why the definition of treasure trove had been included, given that earlier correspondence with the Panel noted the difficulty of translating ambiguous definition of treasure trove such as defining what masse' means and gold' or silver. The Minister explained that once the decision was taken to retain treasure trove, it became necessary to define it. The Minister said, "The definition is consistent with the practical application of treasure trove by the Crown in Jersey, historically, and with English Common Law, which in the case of treasure trove shares a common Norman inheritance."6

The Panel was assured by the Minister that the Legislative Working Group and the Crown were satisfied with what has now been defined.

In relation to the operation of the definition in practice, the Panel queried how a finder would know whether an object met the compositional threshold required for reporting. The Minister explained that there is already an obligation to report treasure trove in the customary law and therefore had been problematic in the past, particularly with the noted ambiguity around the customary definition.7

The Minister explained that the draft Law seeks to address this matter by introducing a broader and clearer requirement to report archaeological objects generally, rather than limiting obligations solely to treasure trove, which provides more straightforward guidance to finders.

5 Letter to MSED – 12 February 2026 6 Letter to MSED – 12 February 2026   7 Letter to MSED – 12 February 2026  

The Panel was keen to understand how the draft Law compared to other jurisdictions that also retained aspects of customary law in this area. The Panel was advised that the precise definition of treasure trove has been the subject of debate in all jurisdictions for centuries, but the core principles remain broadly consistent across comparable jurisdictions with relevant legal traditions with one possible exception:

"The references to masse' in the commentaries on Jersey customary law have been defined in the draft Law to mean more than a single object. That is consistent with the principle that items lost rather than deliberately hidden with the intent of recovery will not be trove since it would be difficult to establish that a single object had not been lost, whereas it is more certain that a hoard was deliberately buried. This is, however, a difference with English trove where a single item could be trove". [5]

Overall, the Panel is satisfied that the draft Law provides a clearer and more workable framework for treasure trove while appropriately respecting the Crown's customary rights.

Offences, Appeals and Enforcement

The Panel sought clarification on the process underpinning the offences and penalties set out in the draft Law. The Panel was informed that these provisions focus primarily on the reporting and protection of archaeological objects. The Panel was further advised that the draft Law includes enabling provisions that allow Regulations made under it to introduce additional offences and penalties, provided they fall within prescribed thresholds. In considering the approach taken, the Panel understands that the development of these measures drew on comparable provisions within existing local legislation, as well as in other jurisdictions such as the UK and the Isle of Man.

The Panel also wished to gain a clearer understanding of the appeal processes contained within the draft Law, the associated Regulations, and the Code of Practice. The Minister explained that while the draft Law does not include a right of appeal against the Viscount's inquest findings, the Court may order a new inquest to be held and the former quashed if it can be demonstrated that it is necessary or desirable in the interests of justice that another inquest should occur. Regarding the draft Heritage (Valuation of Reward) Regulations 202, draft Heritage (Licensing of Archaeological Excavations) Regulations 202- and the Code of Practice the Panel was advised the following:

"The draft Heritage (Valuation of Reward) Regulations 202- has the object of permitting a person to seek a review of the amount of a reward by another Minister but will not provide for a statutory appeal process. However, the availability of judicial review remains. Finally, under the draft Heritage (Licensing of Archaeological Excavations) Regulations 202- there is an appeal route at draft Regulation 8 providing that an applicant or licence holder aggrieved by a determination of the Minister under Regulation 7 may appeal to the Royal Court. The Code of Practice does not contain appeal provisions." [6]

The Panel also examined the draft Heritage (Valuation of Reward) Regulations 202, focusing in particular on Article 5(3) which states: "that the review must be carried out

within a reasonable period of time by a different Minister or an Assistant Minister, who must provide reasons for their decision". 10

The Panel queried whether the Assistant Minister to the Minister could be selected to undertake the review and, if so, whether this could give rise to a conflict of interest. The Panel was informed that the provision had been left deliberately broad, as it is difficult to predict where conflicts of interest might emerge within a small jurisdiction such as Jersey. The Minister said:

"Any Minister or Assistant Minister doing the review should be one without a conflict of interest, but doesn't necessarily need to be stated as that is a basic principle of good government. Ultimately, there would be grounds for judicial review if the reviewing Minister did have a conflict of interest."11

The  Panel  notes  that,  within  the  draft  Heritage  (Licensing  of  Archaeological Excavations) (Jersey) Regulations, the fine for conducting archaeological excavation without licence is determined by the Court rather than stated in the regulations. The Panel was advised that this approach had been taken to allow the Court to come to a view in the context of all the relevant facts and circumstances. It was further advised that this provision is not unusual and appears in other Jersey Laws.

Accidental Finds and Licensing

The Panel wished to understand at what point an accidental discovery becomes classed as an archaeological excavation. The Panel provided an example: if an individual is gardening on their own property and uncovers an object or potential artefact, what process should be followed?

The Minister clarified that the distinction rests on the finder's purpose and intent. Accidental discoveries made during ordinary activities, such as gardening, are treated very differently from deliberate searching or investigative digging. In the case of accidental finds, the obligation is simply to stop any further disturbance and report the discovery  in  accordance  with  the  requirements  set  out  in  the  draft  Law  and accompanying Code of Practice. Deliberate searching or excavation, by contrast, would constitute  archaeological  activity  and  would  require  appropriate  permissions.  The Minister highlighted to the Panel that the draft Law specifically states that:

"archaeological excavation" means an intrusive investigation on or under land or the seabed (whether or not the investigation involves the removal of the surface of the land or seabed) for the purpose –

1. of searching generally for archaeological objects; or
2. of  searching  for,  exposing  or  examining  a  particular  structure  or  thing  of archaeological interest;"12

The Panel was further advised this therefore applies to deliberate searching and is in line with other jurisdictions which licence excavation such as Northern Ireland and the Republic of Ireland.

10 Draft Heritage (Jersey) law 202-

11 Letter to MSED – 12 February 2026 12 Draft Heritage (Jersey) law 202-

The Panel understand however all finders including accidental must still consult the Code of Practice to determine whether an object meets the statutory definition of an archaeological object and follow the reporting process:

"In the case of someone finding an object in their garden, by chance, the finder would be required to follow the guidance set out in the draft Code of Practice to firstly establish whether the item is an archaeological object' (see section 3 of the draft code). The mandatory reporting of archaeological objects is a fundamental provision of the proposed law."[7]

Resource Implications

The Panel notes from the draft Law that there are no additional financial or staffing implications for the Government of Jersey in relation to the proposition, other than the potential level of rewards. It was further noted that the Minister's duties and functions would be funded through existing departmental budgets and resources.

However, the Panel was keen to understand whether Jersey Heritage has sufficient capacity to fulfil the increased role it would assume should the draft Law be adopted. The Minister advised that no additional funding is required, as the infrastructure needed to support implementation, such as the posts of Finds Liaison Officer, Historic Environment Record Officer, and the Historic Environment Record itself, has already been developed following the adoption of P.40/2019. proposition.40/2019 committed the government to investing 1% of overall expenditure in supporting Arts, Culture and Heritage from 2022 onwards.

The Panel was nevertheless informed that there remains a degree of uncertainty regarding the volume of archaeological finds and the impact of the mandatory reporting requirement. As such, the situation will need to be kept under review.[8]

Conclusion

The Panel recognises the significant work undertaken in developing the Draft Heritage (Jersey) Law 202 and the engagement carried out with key stakeholders. The draft Law represents an important step in modernising Jersey's heritage protection framework and reducing reliance on customary practice.

Having examined matters relating to consultation, reporting requirements, treasure trove, enforcement, and operational practice, the Panel is satisfied that the legislation provides a clearer and more robust foundation for managing archaeological finds. The Panel also notes that the associated draft Regulations on rewards and licensing will not be debated at this stage and have therefore not been examined in detail.

Overall, the Panel supports the Draft Heritage (Jersey) Law 202 as presented.

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