OZNISHAMBLES AS TOP QC SAYS CITY OF ADELAIDE EXPORT MAY BE “UNLAWFUL”
UK Government allows “unlawful” export of “City of Adelaide” as OZ Government says no more public money ever for historic clipper
Campaigners hoping to prevent the export of the historic clipper ship City of Adelaide have obtained advice from leading QC Richard Harwood, that the export of the ship to Dordrecht in the Netherlands was “unlawful” and her onward export to Australia would be equally unlawful unless the UK Authorities grant an EU Export licence.
HeritageDaily can also reveal that Heritage Minister Ed Vaizey at the Department of Culture Media and Sport [DCMS], Arts Council England [ACE] which administers export licences for cultural items such as museum artefacts, and National Historic Ships UK which administers the UK Historic Fleet of nationally important ships, were warned in writing that the Open General Export Licence obtained by the City of Adelaide’s owners was almost certainly not lawful before the vessel left the UK in October 2013, but they declined to act.
All three organisations have in the past maintained that the process leading to the sale of the ship to an Australian group, Clipper Ship City of Adelaide Ltd [CSCoAL], and her subsequent export was properly conducted, but they have never quoted specific legal advice that this is the case.
Mr Harwood’s opinion was obtained as part of a last minute effort to prevent the export of the City of Adelaide to her name city in South Australia which is due to continue in the next few days with the City of Adelaide, the World’s oldest surviving Clipper, scheduled to be piggy backed on board the heavy lift cargo vessel MV Palanpur. Mr Harwood’s argues that the export licence is unlawful because there is a strong case that the City of Adelaide should be treated as a Listed Monument because she was a Class A Historic Building [Scotland] and that in any case her value was not properly calculated for export licence purposes and far exceeds the threshold value of £43,484 required to trigger the process for an Individual Export Licence. As a result he concludes…
” . … an EU licence is required to export it [the City of Adelaide] from the European Union and an individual application for a UK licence was required to export it to Holland. The Dutch authorities should only permit its export if an EU licence is granted. As the ship was unlawfully exported to the Netherlands that licence can only be granted by the UK authorities.”
Of course, it is important to stress that in legal terms “unlawful” does not mean any individual or entity has acted with deliberate illegality. Even if the export of the ship is unlawful Clipper Ship City of Adelaide Limited, their agent arranging the export licence, or another party to the process such as the DCMS or ACE, may have made a genuine mistake in good faith and there is no evidence of any deliberate attempt to circumvent the export licence process.
That said, and even allowing that everyone agrees the engineering expertise deployed by CSCoAL Ltd and its contractors has been impressive, it is clear that there are serious questions to be asked about the apparently shambolic licensing process overseen by Heritage Minister Vaizey. Added to which there is a growing sense of confusion surrounding the future of the ship even if she does reach Australia.
“…the Australian Government will not provide any further funding…”
The export of the City of Adelaide to her name city was meant to secure the ship’s future after the failure of the UK Historic Ships community to fund her conservation over more than twenty years in spite of her national importance. However, the whole basis of that calculation is now in question, because the controversy over the validity of the Export Licence and the probably unlawful nature of the initial export of the City of Adelaide to the Netherlands, comes on top of a series of blows to the financial credibility of the Australian project.
In October 2013, as the ship was lying at Greenwich prior to a renaming ceremony attended by HRH The Duke of Edinburgh, State and Federal Authorities in Australia stated publicly that once a grant to help bring the ship to Australia was confirmed, no further funds will be made available for the City of Adelaide under any circumstances and the ship’s Australian owners, CSCoAL Ltd, are not even allowed to apply for further State or Federal funding.
This is of considerable importance for the long term viability of the project as it is well known that conservation projects for historic ships are ferociously expensive, with the analogous Cutty Sark Project at Greenwich being budgeted at £25 million even before the fire which destroyed much of the fabric of the ship and doubled the cost of the project.
In spite of the UK Authorities including Historic Scotland claiming that CSCoAL had met a series of criteria put in place to ensure the future conservation of the ship, it is argued by some that the Australian business plan is fragile and depends on what are argued to be over optimistic projections for private fund raising which are already unravelling.
The reasoning behind this view was apparently reinforced when on 17 October 2013, the incoming Australian Government agreed to pay the $A850,000 to subsidise the transport of the ship to Australia pledged by their predecessors, but only under stringent conditions which deny all future responsibility for the ship once it arrives in Australia…
“The Australian Government’s offer of funding is subject to Clipper Ship “City of Adelaide”
“Limited’s acceptance that the Australian Government will not provide any further funding to either the Clipper Ship “City of Adelaide” Limited or the historic vessel City of Adelaide and that neither will further funding be sought.”
This announcement echoed a similar announcement by Fred Hansen, Chief Executive of renewal South Australia who said…
“Access to the site was provided on the basis that there is no additional cost to taxpayers for developing the facility or refurbishing and maintaining the vessel.”
Research by Andy Brockman, working with the UK Campaigners from SOS City of Adelaide, a consortium of concerned heritage groups including two organisations from the ship’s home port of Sunderland where the City of Adelaide was built in 1864, the Jack Crawford Trust [JCT] and the Sunderland City of Adelaide Rescue Fund [SCARF], suggests this apparently less than ringing endorsement of the project highlights what appears to be an almost complete lack of support for the City of Adelaide project among maritime heritage professionals, museums and government agencies in Australia. All of which suggests the UK campaigners may be right when they allege there is a significant risk that the ship could simply be left to rot if the CSCoAL Ltd Project were to fail to reach its financial targets and so should never have been sold to the Australians in the first place.
“…it looks like it will now just lay derelict in an area no one will visit,”
Adding to the sense of improvisation and uncertainty which surrounds the CSCoAL project is further controversy in Australia over the site allocated to the ship at Largs, over five kilometres from the site in the centre of the new Port Adelaide Development which CSCoAL wanted. CSCoAL gave the gifting of “the backwaters” Largs North site a muted welcome, with Director Peter Christopher telling the Adelaide Messenger that he was disappointed.
“Our group would have preferred a site in central Port Adelaide but we are also appreciative of the fact we’ve been given this land,” Christopher continued “We have accepted the site from Renewal SA but if another or better site became available before the ship’s arrival, we would explore other options.
“If the council had any other prime land available in the Port that they are able to give to us, we would explore that option.”
However, Councillor Bruce Johanson was more outspoken when he told “the Australian”…
“So much money has been spent getting the City of Adelaide to Port Adelaide and it was meant to be a big attraction for the area, but instead it looks like it will now just lay derelict in an area no one will visit,”
Another local politician, Port Adelaide Enfield Mayor Gary Johanson said the government “needed to go back to the drawing board” adding “Putting the ship down at Largs North will do nothing for the Port”.
HeritageDaily understands that these issues were laid before the UK Authorities, including the DCMS and National Historic Ships UK, before the ship left UK jurisdiction in October, but they felt it unnecessary to intervene to delay the export of the ship until the issue of an appropriate permanent site for the vessel was resolved.
At the time of writing, the Dutch Authorities have confirmed that they require a request from the UK in order to act in the matter of the Export Licence – EU Directives allow for the return of improperly exported cultural material – however it is understood that no such request has been received from London.
The Dutch have also confirmed that the UK Authorities have told them that they do not regard the City of Adelaide as a “historic treasure” in the UK; a designation which would allow the Dutch to intervene to stay the export. The UK campaigners are baffled by this stance pointing out that if the City of Adelaide has no historic importance why was she listed as a Class A Historic Building in Scotland and subsequently placed on the Scottish Buildings at Risk register; why was she a member of the UK Historic Fleet, maintained on behalf of the Government by National Historic Ships UK, based in Greenwich, home of the Cutty Sark and why would campaigners in the UK and Australia want her in the first place?
Meanwhile in Scotland, where until the sale to the Australian group the City of Adelaide formed part of the collection of the Scottish Maritime Museum at Irvine, the grant of £750,000 given to Clipper Ship City of Adelaide Ltd by Scottish Culture Minister Fiona Hyslop, is currently under investigation by Audit Scotland following complaints that the grant was made inappropriately and without due diligence.
The campaigners also point out that taking into account the grant of £500,000 given to save the ship in 1992 and the controversial grant given by SNP Culture Minister Hyslop, the UK Heritage establishment has spent a minimum of £1,250,000 in order that CSCoAL can export one of the UK’s most important historic ships at the reported cost for the ship of just £1. To this can be added the Australian Government grant of $A850,000 to assist in the transport of the ship to Australia. All in all this represents a level of public subsidy most UK heritage projects can only dream of and it is a lot to pay for what is effectively a pile of firewood on a frame of scrap iron of no historical value as the UK Authorities maintain.
If Mr Harwood is correct and the export of the City of Adelaide is indeed unlawful there is also a wider issue at stake which affects the entire heritage community. Any unlawful export in this field creates a dangerous precedent potentially enabling unscrupulous would be exporters to circumvent certain export regulations designed to prevent the inappropriate trade in heritage and cultural items. In this case the export of the ship exposes a mechanism whereby the owner of an artefact can override listed status and other designations of historic importance which are supposed to prevent such exports without individual scrutiny by assigning an artificially low financial value to the item and redefining its historic importance.
Both Heritage Minister Ed Vaizey, and Arts Council England were supplied with Mr Harwood’s legal opinion and asked to comment. Heritage Daily also understands the DCMS and other UK bodies have also been asked to intervene to prevent the onward export of the City of Adelaide to Australia from the Netherlands until the issue of the Export Licence is clarified. Thus far the DCMS has declined to comment. However a spokesperson for Arts Council England told Heritage Daily “We take all such concerns seriously, and these have been passed to senior officers in the Export Licensing Unit who will be meeting to discuss this matter in due course.”
Clipper Ship City of Adelaide Ltd was also approached for a comment, but they too have so far declined to do so.
Header Image : Farewell City of Adelaide in the Thames at Greenwich Ocober 2013 copyright Andy Brockman