NEW FUNCTIONS RELATING TO UNDERWATER ARCHAEOLOGY (Hansard, 19 April 2002)

§ Mr. Andrew Dismore (Hendon)
I beg to move amendment No. 9, in page 1, line 11, after "waters", insert "and continental shelf'.

Mr. Deputy Speaker
With this it will be convenient to discuss the following amendments: No. 10, in page 1, line 14, after "waters", insert "and continental shelf'.
No. 11, in clause 2, page 2, line 10, after "waters", insert "and continental shelf'.
No. 12, in page 2, line 19, after "waters", insert "and continental shelf'.
No. 13. in clause 3, page 2, line 38, after "waters", insert "and continental shelf'.
No. 14, in clause 4, page 4, line 2, after "waters", insert "and continental shelf'.
No. 15, in page 4, line 14, after "waters", insert "and continental shelf'.
No. 16, in clause 5, page 5, line 7, after "waters", insert "and continental shelf'.
No. 17, in clause 6, page 5, line 42, after "waters", insert "and continental shelf'.

§ Mr. Dismore
I reassure my hon. Friend the Minister that it is not my intention to talk out the Bill, and I have had to pass on that message a few times. I also give that reassurance to my neighbour, the hon. Member for Chipping Barnet (Sir Sydney Chapman). He is an old hand at these matters and understands how the House works on a Friday. Indeed, he is such an old hand that I cannot resist the ungentlemanly comment of saying that he lays claim to being a scheduled monument in his own right.

§ Martin Linton (Battersea)
But not a wreck.

§ Mr. Dismore
No, not a wreck.
This group of amendments would apply the Bill to the continental shelf, and several issues need to be raised in this context. For example, oil rigs and gas platforms may not be the most beautiful objects in the seas around our coast, but they are vital to the national economy. When we extended our territorial waters over the continental shelf, we did so for economic reasons and to allow us to exploit the natural mineral resources that lie off our coast—for example, in the North sea.
People may wonder why I want to preserve oil rigs and gas platforms. They may think that they are not worthy of preservation. However, future generations may see the rigs and platforms as part of our national heritage and culture because of their importance to our economy over the past decade. Those generations might want them to be preserved. However, as the Bill is framed, they would have no protection at all.
857 The brief provided by the House of Commons Library offers another reason for extending the provisions of the Bill to cover the continental shelf. My hon. Friend the Minister mentioned the number of designated sites that already exist. In fact, according to the most up-to-date figures, there were 49 at the end of 2000. All of them were within the 12-mile limit, and most were within the three-mile limit. I asked the Library to provide me with an estimate of how many wrecks there might be beyond those limits, and it said: Estimates suggest there could be anything up to a million wreck sites in international waters around the British Isles. Most of these would be wooden vessels, difficult to detect with current technology. It occurs to me that although we might not have the technology to examine the wrecks now, there is no doubt that diving technology is advancing rapidly. Before long people will be able to visit the wrecks and perhaps exploit them. We know that that can be done in deep sea by the work carried out by marine archaeologists on the Titanic and the German battleship, the Bismarck, which recently featured on television documentaries. I suspect that it will not be long before some of the wrecks on the continental shelf suffer similar exploitation.
I cannot understand why there should be a legal objection to my proposal. We recently debated the protection of marine wildlife and are thinking of extending conservation areas beyond territorial waters into the continental shelf area. Lord Whitty said in another place on 4 February this year that the Government are thinking of extending the implementation of the European Community birds and habitats directives beyond the 12 nautical mile limit of the territorial waters to areas over which we claim sovereignty. If we can do that for areas of natural importance, we should also do it for areas of historic importance to ensure that wrecked ships are protected.

§ Miss McIntosh
Has the hon. Gentleman estimated the size of the continental shelf around the British isles, especially the coast of England?

§ Mr. Dismore
The usual assumption is a limit of 200 miles for economic activity purposes except when we neighbour another country and the continental shelf is shared. I recall that from my days of studying international law at university.
Some sites that are not covered by the Protection of Military Remains Act 1986 should be categorised as war graves at sea. They include: merchant and passenger vessels that are sunk, whether by enemy action or not; wrecked naval ships as opposed to those sunk or run aground by enemy action; aircraft, although they might be protected by existing legislation; and ships that are more than 200 years old. If we were to extend the legislation, we could provide valuable protection to those sites that are beyond territorial waters.
I know that the definition of ancient monument in the legislation is to be redefined to cover some of those categories. We could use that mechanism to provide additional protection for war graves that are not covered. Although such sites do not comprise naval ships, many people would think of them as war graves. For example, ships that were torpedoed in the battle of the Atlantic or as part of a world war one convoy are not protected unless 858 they are naval vessels. I think that it is important to protect the graves of people who tragically died in those important years that preserved our national life.
More ancient wrecks may also need protection as the work of divers gets more sophisticated. That includes ships of the Spanish armada and the Napoleonic or French revolutionary wars. It could also include East Indiaman ships. At the moment, those ships are well protected because of the depth at which they lie, but they could soon become vulnerable.
It might be worth considering whether we can extend the Bill's provisions beyond territorial waters to include ships on the continental shelf. I am not suggesting that we should protect every one of the million wrecks at the bottom of the sea, but we might need the powers of protection in appropriate cases as and when they become detected.

§ Mr. Greg Knight
Affording protection will work only if the sites are policed. How would that process be carried out?

§ Mr. Dismore
I was going to deal with that when we discuss the next group of amendments. There is a provision in the 1986 Act which has yet to come into force. Protection is afforded at the moment through a voluntary code of practice that the diving communities operate among themselves. To an extent, they form an underwater neighbourhood watch that looks after such sites. My concern is that those wrecks would not be covered even under the existing legislation designed to protect them. I do not suggest for one moment that in the next few days people might go diving on wrecks that are further out, but the reserve powers that the amendment would provide should be available so that an important wreck found, say, 13 miles out could be protected.

§ Sir Sydney Chapman
I am grateful for the contribution made by the hon. Member for Hendon (Mr. Dismore), whom I know well and who is a near neighbour. I am aware of his great knowledge of matters archaeological and of the fact that he is a lawyer, so I am hesitant about quarrelling with him about his amendment.
My understanding of the scope of my Bill is that adding the words "and continental shelf' would extend its application to areas that are outside UK territorial waters. Moreover, the Bill covers only powers in relation to the waters of England; properly, there is separate legislation for Scotland, Wales and Northern Ireland. That may cause problems—I do not know, as I am not a lawyer.
The provisions on underwater archaeology are intended to enable English Heritage to incur expenditure on the archaeological investigation and preservation of wrecks designated under the Protection of Wrecks Act 1973. Clause 1 covers wrecks in, on or under the seabed within the United Kingdom territorial waters adjacent to England. As the jurisdiction of the 1973 Act does not go beyond the boundary of 12 miles, I do not think that it would be permissible to add to my Bill the words proposed by the hon. Member for Hendon.

§ Mr. Greg Knight
My hon. Friend raises a serious point. Will he enlighten us about what would happen if the amendment were accepted and the Bill was 859 subsequently employed to try to affect areas that are beyond the jurisdiction of our courts? Would that make the whole Bill void or liable to a challenge before the European Court? If the amendment could have either of those consequences, those of us who initially had some sympathy with the hon. Member for Hendon might conclude that he should be prevailed upon to withdraw it.

§ Sir Sydney Chapman
I have done a considerable amount of research on the provisions of the Bill, but I am not a lawyer—still less an expert international lawyer—nor would I pretend to be. I could go so far as to say that when I was deciding what profession to take up, I was advised to start at the top of the alphabetical list and work down. I knew that I did not want to be an accountant or an actuary, and I was in danger of not being able to spell the word "archaeology", so I moved on to the next one down, which was architecture. That is why I am an architect.
In all seriousness, my understanding—I would welcome the Minister's clarification later, if not now—is that it would be necessary to make changes to the 1973 Act, which would require separate legislation. Moreover, the fact that the continental shelf is a pretty large area could give rise to practical problems, as my right hon. Friend the Member for East Yorkshire (Mr. Knight) suggested.
I suspect that the amendment may not be appropriate in the context of my more modest measure, but I await the Minister's clarification of whether that is so.

§ Miss McIntosh
The scope of the Bill, as I understand it, is restricted to allowing English Heritage to become involved in underwater archaeology in territorial waters adjacent to England. I would say, in the friendliest spirit, to the hon. Member for Hendon (Mr. Dismore) that the amendments are unnecessary. There is very little continental shelf within England's territorial waters, and continental shelf beyond that is not part of English Heritage's remit.
Like the hon. Gentleman, I am an international lawyer, having graduated from the Edinburgh university. The international law lecturer there when I was a student was a rapporteur on the North sea conference. I commend to the hon. Gentleman the latest conference report, of which there are three copies in the Library. In that spirit, I urge him to withdraw this group of amendments.

§ Dr. Howells
Extending English Heritage's powers to allow it to operate on the continental shelf outside the 12-mile territorial limit would require careful consideration and could affect interests beyond those of English Heritage—perhaps even international interests. It is a big issue for us to consider at this late stage of the Bill's consideration.
My hon. Friend the Member for Hendon (Mr. Dismore) made some interesting and far-sighted suggestions. I remind him that, within the limited context of the Bill, the amendments may not be as appropriate as he thinks. It was never our intention to allow English Heritage to operate beyond the 12-mile limit of UK territorial waters adjacent to England. Putting England on a 12-mile limit 860 makes the position the same as in Scotland, Wales and Northern Ireland, so we are removing an anomaly and the hon. Member for Chipping Barnet (Sir Sydney Chapman) should be congratulated on that.
The situation has been anomalous and, as the hon. Gentleman pointed out, the underwater archaeology provisions are intended to enable English Heritage to incur expenditure on wrecks designated under the Protection of Wrecks Act 1973 in or under the sea bed in UK territorial waters adjacent to England. The jurisdiction of the 1973 Act does not go beyond the 12-mile limit, so we have to resist the amendments.

§ Mr. Dismore
The amendments were designed to draw attention to a risk that is not immediate, but may emerge in the future. Economic activity such as oil platforms may pose a threat to wrecks that are not currently accessible, but may be in the future. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Mr. Dismore
I beg to move amendment No. 19, in page 1, line 19, at end insert— '(4) For the avoidance of doubt, nothing in this Act shall permit any activity on or near any wreck prohibited by the Protection of Military Remains Act 1986.'.
This is a probing amendment designed to ensure that I receive, on behalf of the House, assurances from the hon. Member for Chipping Barnet (Sir Sydney Chapman).
Clause 6 amends the National Heritage Act 1983 by inserting a new section 33C, providing the commission with powers to meet the cost of, for example, surveying, excavating or other investigations undertaken in respect of a protected wreck, the removal of such a wreck or any part of it, the arrangements for its preservation and so forth.
I want to ensure that nothing in the Bill would in any way enable people, with the assistance of English Heritage, to do something forbidden by the Protection of Military Remains Act. That Act creates two different types of protection. First, it is possible to designate a site, such as an area containing naval vessels that were sunk or stranded as a result of military action by another country, or vessels of another country's armed forces, provided that they are within UK waters.
Only those vessels are protected by the legislation and perhaps we should consider whether to extend that protection to aircraft in the same way that the Bill extends the provisions of the National Heritage Act 1983 to aircraft. I have already gone through the other categories that are not included.
The effect of designation is to prohibit a series of activities on such sites—activities that mirror fairly exactly those that are to be permitted, indeed encouraged, by the amendments the Bill would make to the legislation.
The alternative form of protection under the Protection of Military Remains Act is for a protected place, whereby a specific vessel that appears to have been sunk or stranded while on military service is designated, whether or not its last resting place is known. Our earlier discussions are relevant to the fact that that protection applies anywhere in the world, not only in our territorial waters, to vessels that sank after the start of the first world war.
861 No sites have yet been designated under the Act as either controlled or protected sites. Currently, they are protected through the voluntary code that was introduced by those who engage in diving for recreational purposes. I want to do nothing that will detract from their activities. I think that they have behaved extremely responsibly in drawing up their seven-point plan to respect wrecks and helping to police the sites. However, I am concerned that technological advances may result in people attempting to interfere with sites that are, in effect, war graves.

§ Mr. Greg Knight
The hon. Gentleman is probably aware of the recent media programme that speculated about the cause of death of Glenn Miller, the wartime band leader, in which it was argued that his plane might well have been hit by unused bombs dropped by RAF planes on their return from raids on Germany. At the time of his death, Glenn Miller was serving in the armed forces, but my understanding is that the plane on which he was travelling was a civilian flight. Are the remains of Major Glenn Miller covered by the 1986 Act?

§ Mr. Dismore
My understanding is that they are not, first, because if the hon. Gentleman is correct the aircraft was a civilian aircraft and, secondly, because aircraft are not covered by the Act, which covers only vessels. In connection with previous amendments and just now, I made the point that aircraft are not protected. Perhaps we should at some stage—not today—consider extending the legislation in that respect.
We have, regrettably, had news of the plundering—presumably by treasure hunters and not by divers from the United Kingdom—of the wrecks of HMS Prince of Wales and HMS Repulse, two battleships that were torpedoed off Malaya in 1941. As technology advances, some sites will become increasingly vulnerable to misguided and ghoulish individuals who want to crawl all over the wrecks. I am grateful that the diving fraternity utterly condemns such activities and helps to police them to some extent.
Although no sites have yet been designated under the 1986 Act, the purpose of my amendment is to ask the hon. Member for Chipping Barnet to make it absolutely clear that nothing in the Bill would detract from the protections afforded by existing legislation to war graves beneath the seas.

§ Sir Sydney Chapman
I am sure that, like me, the House is extremely grateful to the hon. Member for Hendon (Mr. Dismore) for raising this important issue. I hope to be able to reassure him beyond any doubt.
I have concluded that his amendment is not necessary for one specific reason. The Protection of Military Remains Act covers maritime military graves and other military wrecks from conflicts dating from the start of the great war—world war one. Those remain the responsibility of the Ministry of Defence.
As the hon. Gentleman would expect, I have made inquiry of the Ministry—and as he pointed out, no sites have been designated. That is a fair point, which adds power to what he has said. However, I understand from the Ministry that it is now drawing up a statutory instrument to designate 16 vessels as controlled sites within UK jurisdiction, plus five vessels in international waters that meet the criteria in the consultation 862 document; those will be representative of the others that have been lost. Diving on those vessels will be prohibited without a licence.
I am satisfied that the Ministry of Defence is moving now, however lax it may appear to have been to date. The material point is that once a vessel has been designated under the Protection of Military Remains Act it will be protected by that legislation and English Heritage will have no remit in respect of it.
The hon. Gentleman may be interested to know that most of the 16 vessels intended to be designated as controlled sites within UK jurisdiction are not located in UK territorial waters adjacent to England, so they would be outside the scope of the Bill. Six are in Scottish waters, one is off Anglesey and four are in waters off the Falkland Islands. There are also five other vessels under consideration, all of which are in international waters.
I do not think that amendment No. 19 is necessary to achieve what the hon. Gentleman and the rest of us want to achieve.

§ Mr. Dismore
In his discussions with the Ministry of Defence, did the hon. Gentleman get the impression that we are trying to close the gate after the horse has bolted in thinking about protecting the Repulse and the Prince of Wales through designation?

§ Sir Sydney Chapman
The hon. Gentleman may be in a better position to do that than I am, as he sits on the Government side of the Chamber. All I can do is to pass the message on to the Ministry of Defence. Perhaps he and I could question the appropriate Minister.

§ Dr. Howells
I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on having tabled some far-sighted amendments. However, it is important that we try to see the matter in a broad perspective. The sites that he has referred to are important, but we believe that his amendments to this Bill are not necessary.
As the hon. Member for Chipping Barnet (Sir Sydney Chapman) said, once a vessel has been designated under the Protection of Military Remains Act 1986 it will be protected by that legislation and English Heritage will have no remit in respect of it. As the hon. Gentleman also informed us, the amendment is unnecessary, as most of the 16 vessels in UK jurisdiction due to be designated as controlled sites under the 1986 Act are located outside the UK territorial waters adjacent to England, and the 1986 Act applies only to vessels that sank after 4 August 1914.
I hope that after those reassurances, my hon. Friend will see fit to withdraw what he described as a probing amendment.

§ Mr. Dismore
I am grateful for the explanations by my hon. Friend the Minister and by the hon. Member for Chipping Barnet (Sir Sydney Chapman). The purpose of tabling the amendments was to air the issue, and I accept that it would not be appropriate for them to be pressed now—but I hope that the Ministry of 863 Defence will at least take note of the debate and think what amendments should be made to other legislation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.