HL Deb 08 June 1973 vol 343 cc306-17

12.14 p.m.

THE EARL OF CORK AND ORRERY

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(The Earl of Cork and Orrery.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clause 1 [Protection of sites of historic wrecks:]

THE EARL OF CORK AND ORRERY moved Amendment No. 1: Page 2, line 11, after ("diving") insert ("dredging").

The noble Lord said: This Amendment refers to Clause 1(3), which is the subsection that creates and lists offences which may be taken after a restricted area round a wreck has been declared by the Secretary of State. It refers in particular to the second half of sub-paragraph (b) of the subsection, which makes it an offence to use, equipment constructed or adapted for any purpose of diving or salvage operations …". I proposed by means of the amendment to make that read, diving, dredging or salvage operations".

It is clear enough that a person commits an offence if he dives or uses salvage equipment to bring up anything from a wreck: that is dealt with in a perfectly straightforward way under sub-paragraph (a).

Sub-paragraph (b) makes it an offence to use diving or salvage equipment within a restricted area: in other words, it is possible to catch the offender before he gets on to the wreck. The mere fact of having the equipment in the area is an offence. The question is what kind of equipment he can use. The Bill specifies diving and salvage equipment, but how about a dredger? This could be a splendid instrument for bringing things up from the bottom of the sea. I can imagine a man saying to his wife, "My dear, this is a nice sunny day. Shall we take out the old dredger this afternoon? How about going to have a look at the Mary Rose to see what we can get up from her?" I do not really imagine that that is possible or likely, but there are things which are much more likely when a restricted area has been announced or it is known that the Secretary of State is likely to announce one.

I believe that it is possible to hire dredgers. There are various types and sizes; there are suction dredgers and bucket dredgers, and a man who was determined to get at the wreck in question could take out a dredger by night or by day and would, as the Bill stands, be totally immune from the law until he actually dug something up. It might be remarkably difficult to prove that he had done so and I propose, therefore, that he should be liable to arrest if he brings a dredger into the restricted area. This seems to be a simple addition to the Bill and to close a considerable loophole. There may be an argument or two against the proposal, such as that dredging requires a licence, but I shall listen with interest to what my noble friend Lord Ferrers has to say. In the meantime, I hope that he is having a happy day, and wish him many happy returns on his birthday. I beg to move.

EARL FERRERS

First may I thank my noble friend Lord Cork for his closing remarks. I can only say that my day would have been even more happy had he not put down any Amendments to the Bill. I am bound to say that I thought his Amendment a very good and reasonable one when I saw it. My noble friend has a vivid imagination but the Amendment also stimulated my imagination, because, clearly, if one dives to remove items from a wreck, one is contravening the Bill, but my noble friend has the idea that one might go into the area with a dredger and cut through what is on the bottom and hook up dubloons in the cups of the dredger without committing any offence.

However, under Section 34 of the Coast Protection Act the consent of the Secretary of State is needed for dredging, so I think that anyone who had that idea in mind would fall foul of that provision. In most cases, a person wishing to use a dredger also requires a licence from the Crown Estate Commissioner to dredge. My noble friend may say, "He is not dredging but only cutting through what lies on the bottom, and if anyone came to complain at the dredger working he might say that he was merely oiling his equipment."In that case, however, he would be caught under Clause 1(3)(a) of the present Bill, which makes it an offence to tamper with or damage or remove anything from whatever lies on the bottom of the sea bed. I therefore suggest to my noble friend that, while I have a great deal of sympathy for his Amendment, it is unnecessary.

THE EARL OF CORK AND ORRERY

I am not quite clear about my noble friend's argument, which I may have misunderstood. If I have, he will no doubt correct me. I made the point that anybody who takes a dredger, dredges, and gets something up has committed an offence. That is clearly the case because he is caught under sub-paragraph (a) as having tampered with, damaged or removed some part of the vessel or contents. However, that does not make it unnecessary to have sub-paragraph (b), whether it applies to dredging or not. It is additional and it already refers to carrying out diving or salvage operations. My noble friend would not argue against that on the grounds that if anybody carries out diving or salvage operations he is committing an offence if he brings anything up. He is also committing an offence if he goes down, and in my submission it is equally necessary to include the word "dredging" to complete the full list of machinery which a man can use for the purpose of committing an offence.

As to the matter of a licence and such cognate matters, what I am really visualising—and my imagination is not now quite so extravagant as it was a few moments ago—is a case in which there is a considerable and worthwhile amount of loot to be found on the bottom of the sea-bed in a known place and a resourceful person who is determined to go and get it, it representing to him a very high value. Is he likely to be deterred, if he is otherwise in a position to do so, from carrying out that operation by the knowledge that he has no licence for it? He is setting out to commit what he knows is intended by the law to be a crime.

He knows, furthermore, that he will make a very high profit. He is taking a certain amount of risk for the sake of that high profit. How big must the penalty for not having a licence be in order to deter such a person? It is my suspicion that the fact that he has no licence will not deter him, and if my noble friend thinks that it will, I must say that it is rather touching. I admire and enjoy the simple faith in human nature that can think that anybody who is going to commit a rather expensive and elaborate crime will say to himself, "Oh, gracious, I have no licence—I can't do that." I therefore still think that the Amendment would be a valuable addition to the Bill. It would close a loophole. It would do no harm, and I do not think it can be described as unnecessary. I do not wish to be boastful, but I see no flaw in the drafting and altogether I rather inclined to stick to it.

EARL FERRERS

My Lords, I hope that my noble friend will be open to reason over this. The whole point of putting in the word "dredgers" is to ensure that those who use dredgers will not be able to do that which the noble Lord does not want them to do. I can assure him that, if they were to do this and to remove pieces of wreck, they would be falling foul of the Bill as it stands, by, as I explained to him, Clause 1(3)(a), because they would be tampering with, damaging or removing a part of the vessel.

My noble friend went on to ask if they would be deterred by the knowledge that they had no licence. Of course, the only deterrent to anything is knowing that one is committing an offence and if one dredges without having a licence one is committing an offence. But then my noble friend went on to say that such a person, knowing that there was a big profit to be attached by obtaining these items, would go on to recover what he could. If he did that, he would be committing an offence under Section 518 of the Merchant Shipping Act 1894, because that requires delivery as soon as possible of any wreck to the Receiver of Wrecks; and if a person were to dig up parts of a wreck and not take them to the Receiver of Wrecks, he would be committing an offence. So, on all those counts, the gentleman whom my noble friend has in mind would be contravening regulations. Whilst I take my noble friend's point about dredging, I think that it is unnecessary to insert it into the Bill because the very point which he has in mind is already covered.

LORD KENNET

My Lords, I think that my noble friend Lord Cork is right and that there is nothing against putting dredging into the Bill, but I do not know that he has it in mind to proceed to a Division at this stage because I am not sure that there would be a quorum if he did. Since there is a Report stage coming, I wonder whether he would consider leaving it as a probing amendment for the moment and returning to fight another day.

VISCOUNT AMORY

The suggestion opens up a thrilling activity which I have never seriously considered before. Without declaring any intention of taking it up, I was trying to visualise while my noble friend was speaking what would happen when one took one's dredger into an area close to a wreck and started operations. I gather that it would not be very productive in terms of a tip and run raid, that one would not dash in, scoop something off the bottom and make off again very quickly. One would have to settle down to do considerable work and be stationary with the dredger for some considerable time. During that time, surely the authorities would begin to ask for licences and so on and the offences would come to be declared. If it were a matter of people being able to dash in and scoop up something and get away again, I should have thought that there would have been considerable weight behind my noble friend's suggestion.

THE EARL OF CORK AND ORRERY

My Lords, the idea of a dredger dashing anywhere is an interesting one. Probably it would not, though it might be possible, but I think that the wisest thing that has been said during the last few minutes was said by my noble friend Lord Kennet. I should like for the moment to leave the matter where it is, without any promise not to bring it up again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.27 p.m.

LORD KENNET moved Amendment No. 2:

Page 2, line 46, at end insert— ("(5A) The responsibility for the enforcement of the criminal provisions of this Act shall rest with the Coastguard Service, who shall pay especial attention to it during the period between its becoming known that the Secretary of State is minded to make an order, and the granting of a licence.")

The noble Lord said: At Second Reading we had some discussion about the difficulty of enforcing the Bill, and the Amendment is an amateur attempt to introduce a greater element of enforcement than is to be found in the Bill as it stands. I do not propose to press it on the House. It is a probing Amendment, because the drafting is certainly defective. The Amendment contains two ideas. First, it says that it shall be the job of the Coastguard Service to enforce the Bill. On Second Reading, the noble Earl, Lord Ferrers, told the House that he intended the Bill to be enforced by the Commissioners of Wrecks, most of whom were also coastguards. That seems, at first sight, a little messy: why not make it the coastguards as such? Otherwise, if there is a Commissioner of Wrecks who is not a coastguard he will not be able to enforce the Bill, and if there is a coastguard who is not a Commissioner of Wrecks it is a pity that he should not be allowed to enforce it. This would lay the burden on the coastguards as the most appropriate service. There is also a certain advantage in naming them in the Bill because everybody then knows where they stand.

The second point in the Amendment is slightly more complicated. The noble Earl told us on Second Reading that the first thing the Secretary of State would do when he was minded to make an order would be to advertise in the appropriate publications where the wreck was, and why he intended to protect it, and to hold consultations with in formed persons about what to do. From the moment it is advertised to the moment when he makes the order may be some weeks or months; from the moment when he makes the order to the moment when he issues a licence under the order to somebody to exploit the wreck may be more weeks and months. I have had it strongly impressed upon me by divers and people experienced in this business that by far the best protector of a wreck is the licensee, the man who has his own interest in exploiting it. He will go to some trouble and pains to keep everybody else away and will call in the coastguard if he sees somebody having a go at his wreck. I think that this is a true argument.

So I am worried about this long period during which all the diving community, including the "baddies", are publicly informed that there is a historic wreck at such and such a latitude and longitude mark. It is an invitation to them to go and pilfer it before there is any protection, which they might not want or know how to do if this invitation were not extended. The purpose of the Amendment is therefore to put a special responsibility upon the enforcement body —the Coastguard Service—to protect the wreck during the period when it is especially vulnerable.

EARL FERRERS

I readily accept that the noble Lord, Lord Kennet, has put his finger on what one might describe as the weakest point in this particular form of legislation. Of course it is possible for people to take advantage of the notice that there is a wreck there, before the order is made. But my honourable friend the Parliamentary Under-Secretary in another place said that it was not the Government's intention to devote any additional resources to police these designated sites. The receivers of wreck, Her Majesty's coast guard and the police, will be asked to do all that they reasonably can to ensure that no unauthorised person interferes with a designated site. But we really are not in a position to provide additional resources to mount patrols or to keep a continuous watch on a protected site which may be remote. The police, apart from assisting with local inquiries, are not being asked to accept a primary enforcement role.

It is perfectly true that people may take advantage and may, having been told where the wreck is, go and loot it, but of course if they do they are contravening the law at the moment, because they have to bring such loot anyhow to the receivers of wreck. I would assure the noble Lord, Lord Kennet, that if there is any real likelihood of this happening or of a particularly historic wreck being found, or there is any fear of looting, an immediate order can be made by the Secretary of State under Clause 1(4). This would of course obviate that problem.

LORD KENNET

I think the noble Earl's answer is defective on both points. My Amendment does not seek to lay upon the coastguards or anybody else the duty of running special patrols or getting special boats or increasing their activities; it only specifies where the responsibility lies. I do not know what objection there can be to doing that. On the second point, where the noble Earl said that anybody who went and looted a wreck during the waiting period would be breaking the law anyhow, to the extent that that is true this whole Bill is unnecessary. If people are already breaking the law by looting wrecks and not telling the Commissioner, then we do not need a Bill. I wonder whether the noble Earl would be so good as to turn over those objections in his mind between now and the next stage. If he would, I would seek to withdraw the Amendment at the moment.

EARL FERRERS

Of course I will give the noble Lord that undertaking. I readily recognise that this is a weak part of the Bill, but short of providing extra resources and putting extra commitments on to other sources we think it is right at the moment to retain this weakness, because there is always the provision which I have mentioned to overcome it. But I will certainly take the noble Lord's point.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

LORD KENNET

On Second Reading I asked the noble Lord whether he could tell the House anything about two matters. First, the protection of wrecks on land—he has written to me courteously about that and I do not think it necessary to detain the Committee to discuss it any further. That matter is in my opinion all right. The other thing I asked him about was the protection of wrecks in the opposite direction, outside the three-mile territorial waters limit. I wonder whether he is now able to inform the Committee whether—and if so,when—the Government intend to introduce legislation which will, first, extend the present measures of protection beyond the three-mile limit where there are also historic wrecks, and secondly, will seek to co-ordinate and make sense in general of the whole welter of unco-ordinated and historically accidental powers which exist and conflict for the Government to control what goes on in the sea, on the sea bed and under the sea bed within territorial waters.

EARL FERRERS

As the noble Lord will realise, this Bill will place some limitation on wrecks within United Kingdom waters, on the freedom of salvagers and others to do, with licence from the Secretary of State, a number of things which they have been otherwise free to do. We can of course impose these limitations within our own three-mile limit, because they are our own territorial waters. I accept the noble Lord's concern that we might like to do something outside those territorial waters, but when we come to that point we come on to the fact that we are dealing with the high seas. Anything which is done in those circumstances can be done only by international agreement. The noble Lord referred on Second Reading, I think, to oil fields, the delivery of oil by pipeline and so forth. But of course all those matters were arrived at as a result of international consultation and at international conferences, as a result of which we were able to produce legislation. Until we get such international agreement we cannot ourselves introduce legislation to cover areas outside the three-mile limit.

However, the noble Lord, Lord Kennet, will doubtless know that a Law of the Sea Conference is being held in Santiago next year. We shall be involved in some very delicate negotiations at that Conference, at which a number of important national interests which we are anxious to safeguard will be brought up. I am bound to tell the noble Lord that I cannot forecast what may come out of that Conference, nor can the Government therefore give any undertaking as to what form of legislation might result after the Conference has taken place.

The noble Lord on Second Reading also referred to a number of points about which he was concerned. He listed 41 different operations which took place on or near the sea bed and he has asked to-day when the Government are going to undertake to bring in any legislation dealing with these points. I am sure he will realise that these 41 totally different things—ranging from tunnels, cables, pipelines and offshore terminals even to beach recreation and swimming—are so diverse as really to make any comprehensive legislation almost impossible. I therefore cannot give any assurance that the Government will produce any legislation combining all these things, nor indeed do I think that it would be desirable. If we are going to control even such things as recreation and swimming, angling and bait-digging, we shall really be getting into quite sticky waters.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Supplementary provisions:]

12.39 p.m.

LORD KENNET moved Amendment No. 3: Pae 3, line Dave out from ("above") to ("may") in line 40.

The noble Lord said: I should like to apologise for the fact that I shall probably have to leave in the middle of my remarks on this Amendment, if the Committee will not find me discourteous. I know that I shall leave the Amendment in good hands with Lord Cork. The purpose of the Amendment is to remove the provision whereby every single protection order on every single historic wreck has to be laid before Parliament and is subject to Parliamentary approval. I simply do not think that this is necessary. I do not believe that Parliament will want it. I do not think that the extra delay is justifiable in this case. I believe that there is a case for assimilating the procedure under this Bill with the procedure under the historic buildings legislation, where of course there is no question of specific Parliamentary approval for each individual order. I beg to move.

THE EARL OF CORK AND ORRERY

To that, of course, I say a hearty "Hear, hear!". I apologise to the noble Lord, Lord Kennet, for not instantly stepping in so that he could go off and meet his Chinese friends. I feel he can go ahead with it by himself now.

VISCOUNT AMORY

My Lords, I would only say that any proposal which would make it unnecessary to lay a Parliamentary order requires sympathetic attention. The number of orders that now have to be laid is astronomical. If we can reduce it even by one we should do so. I shall therefore listen with great interest to anything my noble friend says about this proposal.

EARL FERRERS

This particular provision is a perfectly simple one: to give final Parliamentary control over any executive action that might be taken by the Secretary of State. In the normal course of events that would be a laudable reason. That is the sole purpose behind the provision. The noble Lord, Lord Kennet, said that this would result in delay. In fact, it will not result in delay because any such Order which is introduced or laid by the Secretary of State will be subject to the Negative Resolution procedure. It will therefore come into force immediately, subject to anyone praying againgst the order within the period of 40 days. I do not think that his analogy with historic buildings legislation is wholly apt, because there are far more historic buildings, which are designated as such, than ever there would be historic wrecks or wrecks of archæological importance. By making such a designation area the Secretary of State is impinging on the freedom of people to do what they would otherwise be allowed to do. Therefore the Government considered that it was reasonable that Parliament should have the right of approving or disapproving this particular action which the Secretary of State would take. It will not involve any delay at all.

THE EARL OF CORK AND ORRERY

I am, in general, in favour of Parliamentary control over the Government, but I wondered whether it might not be reasonable in this case to let the Secretary of State get on with it. It seems to me that this is something about which Parliament need not concern itself particularly. On the other hand, the arguments put forward by my noble friend for the Government seem cogent and reasoned, and I think it would be better to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.