ANCIENT MONUMENTS AND ARCHAEOLOGICAL AREAS BILL [H.L.]

HL Deb 20 February 1979 vol 398 cc1737-87

4.49 p.m.

The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Stedman)

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.—(Baroness Stedman.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3 [Grant of scheduled monument consent by order of the Secretary of State]:

Lord MIDDLETON moved Amendment No. 1: Page 5, line 1, after ("Secretary of State") insert ("after consultation with such bodies of persons as appear to him to represent the interests affected by requirements for scheduled monument consent").

The noble Lord said: I think we are all in agreement that as the power of modern agricultural machinery and the depth of working increases there is a danger that some sites may be damaged and that these should be protected. Nevertheless, it is important that the terms of a class consent given by an order made under Clause 3 should not be unnecessarily restrictive. During the Second Reading debate The noble Baroness told us that the Government were aware of the problems and were in touch with the interested organisations and with the Ministry of Agriculture, Fisheries and Food. The noble Baroness has also been most helpful in writing to me on this subject. This is really a probing Amendment to elicit from her such details as she may be able to give at this stage indicating the lines which the order is likely to take; for instance, what cultivations will be allowed under the order, what cultivations will require consent, and whether they are likely to get consent. I beg to move.

Baroness STEDMAN

As The noble Lord has said, I undertook to provide more information at Committee stage on this point which he raised at Second Reading. Quite naturally, the Secretary of State will consult such bodies or persons as he considers appropriate when framing the class consents. So far as the agricultural operations are concerned, the Committee will be interested to know that in recent consultation with the National Farmers' Union and the County Landowners Association, with the help of technical advice from the Ministry of Agriculture, Fisheries and Food, it has been agreed that the consent should cover the continued or repeated cultivation of scheduled monuments in a like manner to that in which they have been cultivated during the previous five years and to no greater depth, but that sub-soiling—that is, drainage works and other operations that will affect the subsoil—and other periodic operations, the planting and uprooting of trees, shall not be covered by the class consent, even when those operations have been a feature of normal cultivation in the past. Those operations would not necessarily be banned, but they would require a specific consent. The Secretary of" State would consult in this way whenever a proposed class consent involved a specialised field of this kind. We may also wish to give a class consent for things like minor repair works and in such a case consultation may not be necessary.

There is no mandatory requirement to consult before issuing a General Development Order under the Town and Country Planning Act, and I do not think a mandatory requirement would be helpful here. I think it might rather be like saying that you must ask someone what he would like before you give him a Christmas or birthday present: that is not necessarily the sensible thing to do. You may know quite well what he wants anyway and it may sometimes be better to give him a pleasant surprise for Christmas or his birthday. The noble Lord said it was a probing Amendment. In the light of what I have said, I hope he will feel that it is not necessary to come back at a later stage. I hope he will feel we have been co-operative and do have all the necessary consultations.

Lord MIDDLETON

I thank The noble Baroness for the assurance she has given as to the sort of operations that would get deemed consent. If I may say so, I think that after the consultations which have quite rightly taken place the Government are achieving a very good balance between the interests of food production and the interests of preserving our heritage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clauses 4 to 6 agreed to.

Clause 7 [Compensation for refusal of scheduled monument consent]:

4.53 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 2: Page 7, line 35, at end insert ("or in consequence of the revocation or modification of such consent.").

The noble Lord said: Before I speak to this Amendment, I should like to apologise to your Lordships in this Committee that 10 new Amendments appeared this morning for the first time. I did take the precaution of letting the Minister concerned have these at midday yesterday, as well as the Printed Paper Office, in order that we may be able to get answers to these Amendments, which are, like my noble friend's Amendment, mostly probing.

In moving this particular Amendment, I should like to ask The noble Baroness whether she does not think that compensation should be provided if in consequence of the operation of the Bill expenditure is rendered abortive or if there is a loss of value or asset. These losses may be incurred and should be compensated for not only in relation to the immediate site but also in relation to adjacent areas, I would suggest. Also, they may be incurred not only as a result of refusal of conditional grant of the scheduled monument consent but also in consequence of the later revocation or modification of that consent. Is it not fair that in such circumstances there should also be a right to compensation? I beg to move.

Baroness STEDMAN

I should like to acknowledge what The noble Lord has said about the Amendments, and we are grateful to him for giving our Department as long as possible to look after them. We appreciate that this Bill has moved far more quickly through the Parliamentary timetable than we initially thought it might. I am grateful to The noble Lord for his co-operation. With regard to this particular Amendment, it is Clause 7 which makes the provision for compensation for the refusal of monument consent or for conditions imposed on the consent.

Then, if we go on to Clause 9, that provides for compensation where consent has been given and has been subsequently revoked or modified. The compensation is meant to cover abortive expenditure and other loss or damage that is directly attributable to the revocation or modification of the consent. This seems to us to cover what The noble Lord is seeking. If there is some peculiar situation in the minerals field or elsewhere which he feels that Clauses 7 and 9 together do not cover and which ought to be covered, we will gladly explore it with the representatives of the interests concerned before the next stage of the Bill. But we are reasonably satisfied that the points he has raised are covered by Clauses 7 and 9.

Lord MOWBRAY and STOURTON

I thank The noble Baroness for her explanation. Sitting here I cannot think of any case where her words would not give satisfaction. If there is such a case, I will bring it up at a later stage. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 agreed to.

Clause 9 [Compensation where work affecting a Scheduled monument]cease to be authorised]:

Lord MOWBRAY and STOURTON moved Amendment No. 3:

Page 10, line 42, at end insert— (" ( ) Compensation shall be payable in respect of resources which might reasonably have been expected to be gained or works which might reasonably have been expected to be carried out, had ancient monuments or archaeological areas not been scheduled.").

The noble Lord said: This is slightly similar to my last Amendment. I will put it to The noble Baroness so that she will be able to give her answer, which I am sure will be satisfactory. The point is this. When an ancient monument is scheduled the mineral resources underneath it are going to be sterilised and persons with a genuine interest in these resources would suffer financial loss through no fault of their own. Also, such scheduling might prevent or restrict access to other minerals or other land, so that again losses may be incurred. In such circumstances, perhaps it might seemappro-priate for compensation to be available, and this Amendment is designed for that purpose. I would agree that perhaps a time limit may be necessary for such claims in order that claims in years to come might not appear frivolous. I beg to move.

Baroness STEDMAN

I am afraid The noble Lord is under somewhat of a misconception in so far as this Amendment is concerned, because this relates to the scheduling of a monument and scheduling as such imposes no obligation beyond that to obtain consent for works as defined in Clause 2. Where such consent is refused compensation is payable under Clause 7 to any person with an interest in the monument who incurs expenditure or otherwise sustains loss or damage in consequence of that refusal. This seems to us to be a sufficiently wide description to meet the circumstance The noble Lord has described. We are prepared to look again at the wording in consultation with the interests concerned, but I must say this Amendment as it stands does not serve the purpose, because it is restricted to cases where monument consent has been given and subsequently withdrawn. We will have a look at it with the interests concerned.

Lord MOWBRAY and STOURTON

I am most grateful to The noble Baroness for correcting me and informing me of the position. I will look closely at what she has said. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clauses 10 to 13 agreed to.

Clause 14 [Termination of guardianship]:

Viscount HANWORTH gave Notice of his intention to move Amendment No. 4: Page 15, line 20, at end insert ("and with the consent of the Ancient Monuments Board—")

The noble Viscount said: I received a letter this morning from The noble Baroness who assures me that the safeguards which I had in mind in the Amendment are already covered in the Bill. Therefore, I do not wish to move the Amendment.

[Amendment No. 4 not moved.]

5.1 p.m.

Lord AVEBURY moved Amendment No. 5:

Page 15, line 34, at end insert— ("( ) Neither the Secretary of State nor a local authority may enter into any agreement under this section without the consent of the Ancient Monuments Board.").

The noble Lord said: We are dealing here with the provisions of Clause 14 which concern the termination of guardianship and the circumstances in which that can be allowed under the Bill. The noble Baroness has been good enough to write at some length to The noble Lord, Lord Kennet, who, together with myself, raised this matter on Second Reading, to explain what the Government have in mind. The noble Lord, Lord Kennet, has conveyed to me that he would have supported the Amendment had he been able to be present, and I think that his remarks on Second Reading show that he felt strongly about this matter. He said then that the provisions for the termination of guardianship made his hair stand on end! I do not know whether the letter of the Baroness would have satisfied him that the safeguards which are provided in this matter are adequate. In her letter—from which I should like to quote because not all of your Lordships may have seen it—The noble Baroness emphasises that there is no power of unilateral termination and that: even with the necessary agreement, termination may only be effected where either it is a case for transferring the monument to another preserver or it is agreed that preservation is no longer practical". The noble Lord, Lord Kennet, also asked the Minister on Second Reading what types of monument were envisaged as regards which the power of termination would be used. The noble Baroness has explained that in recent years the Government have been pressed to take into care monuments of a less durable nature than the stone circles, castles, or abbeys envisaged by the Acts of 1882 and 1913. She goes on: I well appreciate that the creation of this loophole may be disquieting, but it would be very difficult for the State to accept, for example, monuments of the Industrial Revolution made of aged iron, subject to corrosion and fatigue, on the same basis—that is, an absolute and irrevocable duty to maintain the monument however difficult and costly that might become". I accept that the arguments of The noble Baroness have some force. But I am still anxious that the power is as unfettered as at present in the Bill.

The noble Lord, Lord Kennet, mentioned that the National Trust takes assets into its ownership and is bound to care for them for all time. I have checked that with the National Trust, and I believe that there has never been a case where it has attempted to divest itself of ownership, although of course there may have been involuntary divestment in cases where assets have been required for road schemes or other public purposes. However, I think that The noble Baroness said on Second Reading that the National Trust was not the same as the State because the National Trust—I am paraphrasing what The noble Baroness said—was ruthless in declining to accept assets into its ownership unless it was perfectly satisfied that it could continue to accept the obligation for all time.

I think that I am right in saying that the State is fairly careful about accepting objects for guardianship and I certainly hope that it would be careful and would not assume unlimited obligations that we should regret later on, despite what The noble Baroness has said in her letter. However, of course we would not attempt to provide that the obligation is an unlimited one. The suggestion which I have made in the Amendment is that the Secretary of State or a local authority would be able to enter into an agreement for termination with the consent of the Ancient Monuments Board. I think that that would be a useful safeguard.

Anxieties are still present in my mind after hearing what The noble Baroness had to say on Second Reading and after looking very carefully at the letter which she wrote to The noble Lord, Lord Kennet. First, let us take the case of statutory undertakers who acquire land in the neighbourhood of monuments which are held under guardianship. They may even acquire the land on which the monuments stand. Ultimately, the statutory undertakers may wish to use that land for their own purposes and there would be all sorts of pressures on them to do so for much wider objectives and to satisfy a much wider "constituency", if I may put it that way, than those who are interested in the preservation of ancient monuments.

Let me give an example of what I have in mind. I asked a Question the other day about the planning and construction of reservoirs. The noble Baroness, Lady Stedman, gave me the Government's Answer; namely, that there are nine reservoirs—I shall not recapitulate all of them—costing up to £38.8 million a piece planned in England and Wales over the next few years. It is probably an unfair point to put to The noble Baroness, but these reservoirs obviously cover a considerable area of the country, and it may well be that some monuments are held under guardianship in the land which is to be inundated by those reservoirs and that those who propose to construct them will ask for the guardianship of those monuments to be terminated. However, statutory undertakers are subject to all sorts of public pressures and Questions could be asked in the House if it were proposed that an important national monument was to be destroyed or spoilt by works of that kind.

We must also consider the question of private owners. I suggest that it is possible that the picture given by The noble Baroness could be balanced by a contrary one, where an owner who is interested in the preservation of a monument would be ready to enter into an agreement for guardianship. The noble Baroness said that in the overwhelming majority of cases the owner agrees to enter into an agreement and it is done on a voluntary basis. However, it is when the owner is not willing to maintain the monument, but wishes to use it for another purpose or simply to deny access, that he might try to resume possession after a guardianship order has been made. Of course, he would not say that. If, after a guardianship agreement has been made, the owner says that he is willing to take back the responsibility, or his successors in title are willing to take back the responsibility, and what they have in mind is not to maintain and preserve the monument but to use it for some irregular purpose or to deny the public access to it, then obviously he will not tell the Secretary of State that that is what he has in mind. However, the Secretary of State would have no means of knowing that he was not prepared to carry out the undertakings which he was saying he intended to carry out.

The other case that I should like to mention in passing as typical of the type of dangers we want to guard against is what might be referred to as the "Grange case". I am sure that The noble Baroness is aware of the history of the case to which I am referring. In this instance we are talking about termination by reason of the fact that it is no longer practicable to preserve it (whether because of the cost of preserving it or otherwise)".

The Grange is an early 19th century house in Hampshire which I understand was taken into guardianship in about 1973 or 1974 and which has since been allowed to deteriorate very seriously. One suspects that if the Secretary of State had had this power during the last six years there is at least the possibility that it would have been used and that no reference would have had to be made to any other authority, or professional opinion sought, to say whether the Grange should continue in guardianship.

Finally, The noble Baroness is bound to tell me that the Ancient Monuments Board has a specific right to advise when it is proposed to terminate guardianship under Clause 22(7). If that is all we are to be left with in the end and the Ancient Monuments Board does not have a power of veto, I would suggest that we might seek to provide that any such advice should be given in writing by the board and should be published as part of its annual report. However, I would much prefer that the board should have a veto on the termination of guardianship. I beg to move.

Baroness STEDMAN

I shall try to answer the two direct questions which The noble Lord has put to me. May I ask him to accept my assurance that at the moment the matter of the Grange is sub judice. Recommendations have been made to my Secretary of State; consultations and meetings are proceeding. We hope that we shall know the outcome within a few days. I should prefer to say no more than that at this time.

On The noble Lord's point about the reservoirs, having had the question sprung on me, no, I cannot tell him whether or not there are any ancient monuments or scheduled places in them. However, I shall certainly take advice on the matter, and if I find that we are absolutely inundating most of our ancient monuments, I shall come back to The noble Lord.

As regards his Amendment, I explained on Second Reading that the termination of the guardianship deed can be effected only with the agreement of the other party, and even then only in very limited circumstances where the Secretary of State is satisfied that other arrangements of a satisfactory nature have been made for the preservation of the monument, or where the monument in question is no longer capable of being preserved.

I accept that the Ancient Monuments Board is our expert advisory committee, and its advice will always be sought before any action is taken on any attempts to terminate guardianship. The board has the specific power to advise us under Clause 22(7) (d); but, as The noble Lord has admitted, the Ancient Monuments Board is an advisory board. It is not elected; it is not answerable to Parliament. Nor is it equipped to weigh up the conflicting consideration of cost as against retaining an ancient monument in quite the same way as perhaps a political Secretary of State might have to in the light of circumstances. The ultimate decision in any matter of this sort must rest with the Secretary of State, who is answerable to Parliament and the elected House. Therefore, on those grounds I must advise the Committee not to accept The noble Lord's Amendment.

Lord AVEBURY

Can The noble Baroness offer the Committee any thoughts about the publication of the advice given by the Ancient Monuments Board in these circumstances? Although I accept that she has a powerful argument when she tells the Committee that ultimately this is a political responsibility and that the Secretary of State, who is answerable to Parliament, should be the one to take the responsibility rather than a non-elected body such as the Ancient Monuments Board, I think that when the Secretary of State's decision is examined by the public, by your Lordships and by another place, we are entitled to know what advice has been given. Although the technical opinions of the Ancient Monuments Board may not be paramount and other considerations may have been uppermost in the Secretary of State's mind when he or she reached that decision, nevertheless the aesthetic, technical and historical arguments—which presumably have determined the advice given by the Ancient Monuments Board—should be available to all and sundry so that they can be used in evaluating the decision. Therefore, before I withdraw the Amend- ment I should like to know whether The noble Baroness is prepared to consider my alternative suggestion that this should be written into the Bill, perhaps at the Report stage. If she will give me an undertaking to look at that, I certainly shall not press my Amendment.

Lord CRAIGTON

I should like to support that argument. I see that in the clause to which The noble Baroness referred the advice "may be" given, not "shall" be given. I appreciate why it may be given. But because it is only "may" in Clause 22(7) on page 26, it would be helpful to have it in writing that that advice should be printed.

Baroness STEDMAN

It is certainly the intention of my right honourable friend the Secretary of State that that advice shall be available to him on the very rare occasions when it would be needed. We do not see this happening day by day or month by month. It may happen only once every seven or eight years, or perhaps at even longer intervals. The Ancient Monuments Board submits its annual report to Parliament. If this happened and this was the advice it had to give, if it was of such moment I see no reason why it could not justify it in every report. However, if The noble Lord is happy, I shall certainly check on the administrative possibilities. If my reading of the situation is wrong, I shall be in touch with The noble Lord before the next stage.

Lord AVEBURY

I am grateful to The noble Baroness for her accommodating answer, and therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 [Acquisition and guardianship of land in the vicinity of an ancient monument]:

5.15 p.m.

Lord MIDDLETON moved Amendment No. 6: Page 16, line 12, leave out ("10 to 12") and insert ("11 and 12").

The noble Lord said: During the Second Reading debate The noble Baroness told us—and I accept it—of cases where the present power of the Secretary of State to make compulsory guardianship orders has proved inadequate to secure satisfactory protection of an ancient monument, although The noble Baroness did say that these were few in number. Therefore, the Government have replaced the existing powers by providing in Clause 10 a power for the Secretary of State to acquire compulsorily: any ancient monument for the purpose of securing its preservation". The noble Baroness stressed at Second Reading—and she has since confirmed it to me in a letter, for which I am most grateful—that this power would not be exercised for any other purpose.

One is always reluctant to see a Government giving to themselves or to another body further powers of compulsory acquisition. But I suppose that there might be a few cases where compulsion provided the only means of preserving an ancient monument. I am not clear whether the absence of this power has ever resulted in irreparable damage to a monument or to its destruction, but at any rate the Government believe that the extension of compulsory purchase is essential in respect of the site or the monument itself, and that I accept.

However, what I do not accept is that there are substantial reasons for further extending the power of compulsory acquisition given to the Secretary of State by Clause 10 to the compulsory acquisition of land in the vicinity of an ancient monument. That is what Clause 15 does. The noble Baroness has said that the scale of visiting of certain monuments and the provision of facilities has raised serious problems. One can think of several examples that bear that out. What is not immediately obvious is the extent of the problem when land has to be acquired for such facilities. Have there been sufficient cases to justify this further extension of the power of compulsory acquisition, or is this merely a precautionary measure? If it is, despite the assurance of The noble Baroness that this power would be used only in the last resort, I believe that this extension of compulsory acquisition to outlying land should be resisted. The effect of this Amendment would be to restrict the acquisition of land in the vicinity of an ancient monument to acquisition by agreement. I should be most interested to hear why The noble Baroness thinks this procedure would be inadequate. I beg to move.

Baroness STEDMAN

As I said on Second Reading, we seek a compulsory power to acquire land required for the management for the monuments in State care, because the changing circumstances of today have shown that there is a need for it. As The noble Lord said, there is, fortunately, an increasing number of visitors to our monuments. Most of them come in motor vehicles, so it is essential to be able to make some proper provision for them. Very often the pressure for the provision of car parks and lavatories for visitors arises from the community where the monument is situated, because they are the people who suffer if these facilities are not available. The sites for such facilities must be carefully chosen in relation to the setting of the monument and the amenities of the locality. There may be other constraints such as damage from traffic, or danger from traffic, or damage to drains, and experience has shown us that very occasionally only one site is the suitable site for this. So there is, accordingly, a very real risk that what is needed in the public interest may be frustrated by just one individual.

Naturally his interests and his point of view must be taken into account and must be weighed against the public interest, and we must strike the right balance. But at present there is no balance, and where agreement is not attainable then the public interest is completely impotent. It is not a situation which Parliament thought acceptable in comparable situations. The facilities in the national parks, or in the provision of country parks, make it possible for them by compulsory purchase to buy land for these particular purposes, and my understanding is that there is about one instance in every 12 or more years in so far as the national parks and country parks are concerned, and in those situations of course quite often the suitable sites, or the choice of them, is less restricted as to where they can go in the national parks.

The power we seek in respect of the State monuments will only be used where it is clearly necessary after every other possibility has been explored, and after we have not been able to reach voluntary agreement with the owner but feel that there is a crying demand for these facilities for the visitors to the monument in order to placate even the local residents in the site as well. I hope that The noble Lord will not feel that he ought to push this Amendment.

Lord MIDDLETON

The noble Baroness has confirmed that this is in fact a precautionary measure. In view of the assurance that she gave at the end of her statement I think we can be assured that this power will be very sparingly used. It is, as she says, absolutely essential that these popular sites should be properly serviced. In view of the fact that she said that it will only be used in the last resort, I think I am reassured. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 agreed to.

Clause 17 [Agreements concerning ancient monuments and land in their vicinity]:

5.22 p.m.

Baroness STEDMAN moved Amendment No. 7: Page 20, line 11, after ("State") insert ("or (as the case may be) by the local authority").

The noble Baroness said: With the leave of the Committee, I should like to speak to Amendments Nos. 7 and 8 together. There is no reason why a local authority should not have identical powers to that of a Secretary of State in relation to agreements made with the occupier of an ancient monument or of any land adjoining or in the vicinity of the monument. This was our intention. We felt that it was not quite clear in the Bill as it stood at Second Reading, and these are the drafting Amendments in order to make that quite plain. I beg to move.

On Question. Amendment agreed to.

Baroness STEDMAN moved Amendment No. 8: Page 20, line 18, after ("State") insert ("or (as the case may be) to the local authority").

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clauses 18 to 23 agreed to.

5.24 p.m.

Lord AVEBURY moved Amendment No. 9: After Clause 23, insert the following new clause:

(".—(1) The Secretary of State shall appoint one or more inspectors of ancient monuments and it shall be among the duties of those inspectors to report to the Secretary of State on the historical, architectural and archaeological importance of ancient monuments and areas of archaeological importance and on the best mode of preserving, recording or excavating them.

(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of such inspectors to report to the Secretary of State on the historical, architectural and archaeological importance of ancient monuments, historic buildings, and areas of archaeological importance which are for the time being Crown land, and on the best mode of preserving, recording or excavating them.").

The noble Lord said: I wonder whether it would be for the convenience of the Committee if, with Amendment No. 9, we were to take my Amendment No. 33 which concerns the question of Crown land and which is dealt with in subsection (2) of my new clause. I think I see The noble Baroness nodding her head, and so I shall proceed to develop my argument on that basis.

The main point at issue in this new clause is whether there are to be statutory advisers whom the Secretary of State is obliged to consult, or whether they are to be simply professional civil servants whose existence and whose duties depend on continuing ministerial discretion. It is still the opinion of many of those who have looked at this matter that without a statutory role for the Inspectorate the way might be open for interference by administrative officers to suit administrative convenience, or by Ministers to suit political expediency.

I know that The noble Baroness gave the House assurances on Second Reading and has repeated them in correspondence with several noble Lords who spoke on Second Reading. I am sure that they are most valuable statements. May I recapitulate some of the points that she mentioned in her letter to The noble Lord, Lord Kennet, because that is the fullest reply that she made to any of your Lordships.

She assures him that the Inspectorate is not to be abolished, and she explains that the reason why Section 16 of the 1913 Act is not to be re-enacted—and that is really what we are talking about here—is that in any consolidation Bill it is necessary to examine all the existing provisions to consider whether they have become out of date or unnecessary, and in the opinion of the Government Section 16 is both of these. She says that the definition of the advisory duties of the Inspectorate to report on the condition of ancient monuments and on the best mode of preserving them is inadequate and misleading. The provision is unnecessary because it has for a long time been accepted that Ministers are entitled to employ whatever kind of officials may be needed to enable them to carry out their statutory functions.

That is so, but there are other examples of particular kinds of experts who are employed to advise the Government. One thinks of the health and safety at work inspectors, for example, who are mentioned in the legislation. In any case, it is the opinion of many people that the specific mention of inspectors in the legislation ever since the 1881 Act has had a value in maintaining their role and their importance.

I do not make too much of this, but a comparison may be looked at with the investigators of historic buildings. In the Town and Country Planning Act 1971 there was a provision—I think it was Section 64(3)—which required the Secretary of State to consult such persons or bodies as appear to him to be appropriate, having knowledge of or interest in buildings of architectural or historic interest, in preparing the list of historic buildings. There was a similar provision in the legislation before 1971.

Since the war it has been the practice of the Secretary of State to list any threatened buildings recommended as listable by the investigators. In the last three years there has been a new interpretation of that provision and there have been several instances where the advice of the investigators has not been taken. It may be partly because the investigators are not a statutory body, but their status and their position as advisers has been eroded. I am sure that that is not the full story because the inspectors have also been downgraded in the post-war period, and thus then The noble Baroness says, "We are maintaining the Inspectorate", there is no guarantee that this process of downgrading may not continue, nor of course, as we remarked on Second Reading, has The noble Baroness got any power to bind her successors.

The noble Baroness said on Second Reading, and repeated in the correspondence, that Ministers employ whoever is needed to carry out their functions. In the ancient monuments field architects are necessary in carrying out these functions just as much as the inspectors are. It is necessary for the architect to work closely with the inspectors, but the difference between the two is that the Secretary of State could not possibly operate without the advice of the architects. But he, or she, could do so without inspectors, though the buildings might be wrecked or demolished as a result. Very unfortunate consequences might flow from only taking the advice of architects and not that of the inspectors.

It may be of interest to noble Lords if I went into the history of the matter. I will be as brief as possible. Between the wars the chief inspector who advised in accordance with the 1913 Act and who remained in office until 1933 was the distinguished Sir Charles Peers. He brought standing buildings and ruins within the scope of the Inspectorate under the 1931 Act, and it was of him that Sir Mortimer Wheeler said: He laid down the principles which have governed architectural conservation in the United Kingdom and have served as a model in other parts of the world".

As chief inspector, he reported only to the secretary of the Board of Works and that was the equivalent, if one puts it in modern terms, of reporting to the Permanent Secretary of the Department of the Environment. He was a very distinguished scholar, a president and gold medallist of the Society of Antiquaries and was loaded with honours. Under him the Inspectorate advised on all historic Crown buildings in the charge of the Board of Works.

During the Second World War the responsibilities of the Ministry of Works were enlarged so that the Inspectorate became also concerned with what was termed "rescue archaeology". That meant as I understand it, archaeology in advance of a construction threat, and that particularly arose in connection with the building of airfields and other wartime works of construction. It was extremely enlightened of our predecessors to have had regard to ancient monuments even when the very survival of the nation was under threat. The credit for that probably goes to O'Neill, who was chief inspector between 1945 and 1954, and who was the driving spirit during the war, and it is from that era that Part II of the Bill stems.

In 1954 O'Neill died and that seems to have been the turning point, because after 1955 the secretaryship of the Ancient Monuments Board was transferred from the principal inspector in each country to administrative officers. In 1970 the chief inspector was placed under the management of the Director of Ancient Monuments and Historic Buildings, which is not a professional appointment, and at some date after the Department of the Environment came into existence a deputy secretary also came into the chain of command above the director, and he too is non-professional and has many other functions.

We can see from that that the role of the chief inspector has been considerably downgraded in importance in the 25 years that have elapsed since O'Neill's death. In 1972 the Property Services Agency came into existence, which in administrative practice meant that the inspectors were even more remote from those who took the decisions in respect of Crown property, other of course than the properties which were already directly administered by the Director of Ancient Monuments and Historic Buildings.

I should mention that among the buildings administered by the Property Services Agency are included all the Government offices in Whitehall and Somerset House, so they are not an insignificant owner of ancient buildings and monuments. Against that background, assurances that the position of the Inspectorate will be maintained cannot be viewed with any confidence, and the deletion of any reference to the inspectors is seen as another step in the process of the diminution of their role and importance.

Turning to the second part of my new clause, the inspector's function was defined in 1931 as, among other things, advising on all questions in connection with the treatment, maintenance, repair and so on of all ancient monuments or historic buildings in the Commissioner's charge, including Crown property. Although the exercise of that function has, as I have said, been eroded by the creation of the Property Services Agency, the definition has not, I think, ever been officially superseded and it constitutes the only protection for Crown buildings apart from the non-statutory custom of consulting local authorities for a listed building consent.

However, there have been plenty of examples of works which might have been carried out by the Property Services Agency without seeking the advice of inspectors. One example was the case of the brass foundry at Woolwich Arsenal. A scheme was first produced without advice and afterwards, when the inspectors were brought into the matter, that scheme was substantially amended and it finally won The Times RIBA conservation award. Hence, if we do not have a provision such as I propose there will be grave danger that regarding Crown property—not under the existing Administration but at some future date—things may happen that we could regret.

I should point out before concluding that there is nothing in what I have said which should be taken as a criticism of the relationship between the inspectors and others in the Department, particularly the architects, with whom they work closely and harmoniously. What I am considering is the fact that this largely consolidating measure will probably, like the 1913 and 1931 Acts before it, have to rest on the Statute Book without substantial amendment for 20 or 25 years, and that what we do now is therefore of extreme importance not for the present Administration but in terms of public development and the pressures on land that can be foreseen towards the end of the century.

Baroness STEDMAN

The noble Lords, Lord Avebury and Lord Kennet, raised this matter previously and expressed concern about the position of inspectors both under this measure and those which have gone before. I have looked at the matter again and I still feel that the proposed new clause is unnecessary. Ministers are able to appoint whatever officials they think are needed to enable them to carry out their statutory duties. We feel it is undesirable to specify the classes of official in statute, since that might be limiting; we might want to employ other people who are not so specified. If the inspectors are to be specified, we must then ask ourselves why not the architects or the engineers, or even the field monument wardens who have just been appointed and who are also necessary for the protection and preservation of ancient monuments; or indeed the scientists of the Ancient Monuments Laboratory, whose pioneering work rightly enjoys an extremely high reputation.

Equally, it is undesirable to define their duties, since they change as circumstances change, and I suspect that their duties, what they are doing today, may be different in some respects from what they were doing in 1882 or even in 1931. If we consider Section 16 of the 1913 Act, it would be no answer to say that as a definition becomes out of date it should be progressively disregarded.

It is equally unnecessary, we feel, to require a special duty in respect of monuments on Crown land. The Crown does not need statutory powers to enable its officers to carry out their functions in respect of Crown property, and I am assured in the Department that in so far as any of the Government Departments are concerned, there are no problems; that our inspectors are welcome and that our inspectors have the right to go in and look at things in so far as they are able to do so without prejudicing perhaps national defence or something of that sort.

I have been in the Department for only six weeks, but in that time, while I have been involved with this Bill, I have come to have a very healthy respect for the work that our chief inspector and his colleagues do, and a high regard for them as individuals. I do not accept that they have been downgraded by not being specified in the Bill. The Inspectorate of Ancient Monuments is held in very high regard both inside and outside the Government, and their standing within the community, the Department and the ancient monuments field depends not on a statutory reference to them in any Bill or Act of Parliament, but on the way they have repeatedly discharged their duties over a long number of years.

I am happy to give noble Lords an assurance that the duty of the inspectors to report on the care of monuments will continue unimpaired. I would certainly wish to continue the practice of seeking direct advice from my inspectors and of ensuring that they were free to report to Ministers on matters within their professional competence. This is as it should be. This is how we want to use them, and we want them to feel free to come to my Secretary of State or to me as Ministers if they feel that something is not right or is not being done correctly within another Government Department. We must have the administrative line within the Department; we must have the specialist line; and they have to work together. As recently as this morning I had some discussions about the Inspectorate and its operations under the new Act, and I should like to endorse what The noble Lord, Lord Avebury, has said. There is no inter-professional jealousy or animosity on this matter. There is no feeling between our inspectors, the architects, the surveyors and other people. They all want to do the best job that they can, and do it to the best of their ability.

With regard to the second Amendment to which The noble Lord referred, which is dependent upon whether his new clause is accepted, I do not think there is any reason to override the provisions in question, which are normal so far as Crown land is concerned. There is no reason to suppose that any of the appropriate Crown authorities are likely to resist entry for any purposes that our inspectors require, and the assumption must be that the co-operation that we know today will continue. The second Amendment is defective as it stands, referring as it does to Clause 23, because I am advised that if the new clause were accepted, it might not even be Clause 23; but we take the Amendment in the spirit in which it has been tabled.

The noble Lord made some comments about the investigators so far as the Historic Buildings Council is concerned. There is not really any comparison with the 1971 Town and Country Planning Act responsibilities of the Secretary of

State, under which he has to consult the Historic Buildings Council on the criteria that is applied. In the case of listed buildings the investigators, who are also part of the Inspectorate, make recommendations to the Secretary of State, and again acting on criteria that is already recommended by the Historic Buildings Council, they are the ones who are consulted in the special cases. The investigators are not specifically mentioned in the Act. They might say that they ought to be represented as well as the inspectors. I am advised that the chief inspector has been upgraded in recent years.

I feel that The noble Lord is a little apprehensive about this matter, and I do not think that he ought to be. I have given assurances this morning to some of the inspectors that it is my view that we rely upon them for their advice. We shall continue to expect to receive their advice. We shall expect them to be asked to go out and undertake their investigations in Government Departments and in Crown property in the same way as in other places. Furthermore, we shall expect that if they see anything happening which they think ought not to happen, they will feel free to come to my Secretary of State or to me. I hope that in view of those assurances The noble Lord will feel a little more satisfied.

Lord AVEBURY

I am very grateful to The noble Baroness for what she has said, and I was glad to hear that she had had a productive discussion with the inspectors—

Baroness STEDMAN

With their representatives—

Lord AVEBURY

With their representatives this morning. I am also pleased that she has been able to give me from the Dispatch Box today assurances which go some way towards meeting the anxieties which I expressed and which The noble Lord, Lord Kennet, similarly expressed on Second Reading. I was pleased to hear The noble Baroness say that the Inspectorate is held in high regard—that is certainly the impression that I have—and that we have a reputation which depends on the work of the inspectors, not merely on a national basis but also throughout the world. I should still prefer that the inspectors were mentioned by name in the Bill, but I accept that my view is unlikely to prevail. Therefore, in the hope that the undertakings that have been given by The noble Baroness will be honoured not only by her colleagues in this Government but also during the lifetime of the Bill after it becomes an Act, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 24 to 32 agreed to.

Clause 33 [Designation of areas of archaeological importance.]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord MOWBRAY and STOURTON

I wish to draw your Lordships' attention to the question of the treatment of comments received as a result of the notice required under Schedule 2, paragraph 3, on page 64 of the Bill. Schedule 2 does not lay upon the Secretary of State any specific obligation to acknowledge these comments, still less to take them into account, and I wish to suggest that this omission ought to be remedied if possible.

Baroness STEDMAN

My Lords, I can assure The noble Lord that the comments and representations will of course be acknowledged and will be taken into account before the designation order is made. There would be no other purpose in publishing the proposal, if we were not willing to go to those lengths. It is not considered necessary to include a statutory provision to this effect. I advise the Committee that that is our feeling, and I hope that The noble Lord will accept this answer as being his feelings as well.

Lord MOWBRAY and STOURTON

I am grateful to The noble Baroness, and I willingly accept her assurances.

Clause 33 agreed to.

Clause 34 [Investigating authorities for areas of archaeological importance.]:

5.46 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 10: Page 31, line 13, leave out subsection (5).

The noble Lord said: The Amendment is designed purely to ascertain the precise circumstances in which the Government feel that an investigating authority should be able to delegate its functions. I should have thought that the authorisation seriously detracts from the control implicit in the Secretary of State's own power of delegation in Clause 34(1), and does not seem to be justifiable. I shall be most grateful if The noble Baroness will explain this apparent anomaly. I beg to move.

Baroness STEDMAN

If the Amendment were accepted it would remove the power of an investigating authority to authorise another to act on its behalf in dealing with operations notices and conducting investigations in a designated area. The purpose of the provisions of sub-section (5) is to enable an investigating authority to employ another archaeological body to act on its behalf. The need for this could arise if the staff of the investigating authority were fully occupied and an important additional opportunity arose in its area. In such circumstances an archaeological body from a neighbouring area might have to be authorised to act. However, this body would be the agent of the investigating authority, which would remain responsible. So, perhaps the anxieties of The noble Lord are a little exaggerated. The provision is a desirable means of ensuring that all the archaeological resources are deployed where the need for them is greatest, and they would be used only in circumstances where there was much work to be done within an area, and the archaeological section which was brought in to help would work as agents of the authority which had the responsibility for the area.

Lord MOWBRAY and STOURTON

I am grateful to The noble Baroness for her explanation, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 [Notice required of operations in areas of archaeological importance]:

[Amendment No. 11 not moved.]

On Question, Whether Clause 35 shall stand part of the Bill?

Lord MOWBRAY and STOURTON

I should be most grateful if The noble Baroness can give me a definition of "operations which disturb the ground", and perhaps an Amendment should be made to subsection (2) to clarify this point. I have in mind cases where underground mining has been authorised. Are the ancillary works carried out at the surface included in the definition, and at what depth of mining can disturbance of the ground be regarded as sufficiently minimal to be outside the scope of the provision? The answers to these questions need to be clearly established to avoid future problems in mining practice.

Baroness STEDMAN

I am grateful to The noble Lord for having given me advance notice that he wanted some more information on this particular clause; and, as he says, the purpose of it is to seek a definition of "operations which disturb the ground", with particular reference to deep-mining operations. It is in fact doubtful whether mining operations at great depth could be held to require the service of an operations notice; nor would we wish to catch such operations needlessly. We have at present agreed with the National Coal Board that there should be an exemption for deep-mining operations, but an amendment to the definition of "operations which disturb the ground" may be preferable.

The purpose of the provision in Part II of the Bill is to provide opportunities for archaeological investigation prior to operations which will disturb or destroy archaeological strata, which are normally found down to 15 feet from the surface. We have no wish to catch in this machinery operations deep below ground which will have no perceptible effect on the surface levels. My Department has already had consultations with the National Coal Board. We will consider further whether any amendment of the definition of operations or an exemption under Clause 37 is necessary to achieve our purpose. I must stress that such exemption would not extend to surface operations, which fall within the definition in Clause 35(2); but we will have a look at the definition under Clause 37 before we come to the next stage.

Lord MOWBRAY and STOURTON

I am most grateful.

Clause 35 agreed to.

Clause 36 [Certificate to accompany operations notice under section 35]:

5.52 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 12: Page 33, line 20, after ("has") insert ("or can reasonably expect to have").

The noble Lord said: With your Lordships' consent, in moving this Amendment I should like to speak to Amendment No. 13 as well. The purpose of these two Amendments is to allow the archaeological operations to be undertaken at the earliest practicable stage, and thus to avoid unnecessary, costly delays. It is sometimes necessary to open quarries, particularly gravel quarries, at short notice to provide raw materials; for example, for road construction and maintenance, where unexpected engineering problems arise. The clause as drafted relates only to persons with an established interest in the site, and perhaps needs to be widened to include those expected to have such an interest. I beg to move.

Baroness STEDMAN

Like The noble Lord, Lord Mowbray, we hope that rescue archaeology will not ever be subject to any undue delay, and it will always be our aim to secure opportunities for rescue archaeology by voluntary agreement rather than depending always on the strict terms of the statute. So, in the situation envisaged by The noble Lord, if a prospective purchaser and a vendor approach the investigating authority asking them to enter before the formalities of a purchase are completed, the investigating authority will always be happy to co-operate in any case where development is indeed likely to ensue. Without the owner's agreement it would surely be unworkable to give the statutory right to someone who had not yet purchased the land, to enable archaeologists to be brought on to that land for various purposes, including, possibly, excavation. Therefore, with that proviso, I ask your Lordships not to accept the Amendment moved by The noble Lord.

Lord MOWBRAY and STOURTON

Once again I am very grateful to The noble Baroness, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clause 37 [Exemptions from offence under section 35]:

Lord MIDDLETON moved Amendment No. 14: Page 34, line 16, after ("Secretary of State") insert ("after consultation with such bodies of persons as appear to him to represent the interests affected by requirements for scheduled monument consent").

The noble Lord said: Clause 35 provides that anyone who intends to carry out operations which disturb the ground in a designated archaeological area must first serve notice giving precise particulars in a prescribed form, and he must produce a certificate to comply with Clause 36. I take it that an archaeological area would usually be in an urban environment or where there are proposed roadworks, gravel works or opencast mining. However, it could be in a rural area, and include land which is being farmed. Presumably the archaeologists would not want farming and forestry operations to go ahead with out notice being served under Clause 35. On the other hand, agricultural interests would not want to have to give notice for every and any act of husbandry or forestry. Farmers would hardly seem to fall into the category of what Clause 35 calls "the developer".

The purpose of this Amendment is similar to that of the Amendment proposed to Clause 3. The noble Baroness has already given assurances with regard to a class consent under Clause 3. Would she tell the Committee—and in her letter to me she has already indicated her willingness to do this—whether the exemption rules which are to be made under Clause 37 will take full account of agricultural requirements, and will make exemptions for ordinary acts of cultivation? I beg to move.

Baroness STEDMAN

As The noble Lord has said, I gave certain assurances and undertakings when we were discussing the first Amendment before us this afternoon, and the comments which I made on that Amendment apply, if anything even more strongly, to this one. The Secretary of State will consult wherever it would be helpful to do so; and the Department is actively engaged in consultation now with the Confederation of British Industry and others about the proposed exemption for mineral extraction. But it will also be necessary to grant exemption to allow everyday life to continue; the ordinary continued cultivation of gardens, for example, or the continued use of existing burial grounds, even. A mandatory requirement to consult in every case is unnecessary, but I think The noble Lord can be satisfied that consultation will take place wherever it is necessary.

Lord MIDDLETON

The noble Baroness, as she did in the case of Clause 3, has given me assurances that satisfy me, and I therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord MOWBRAY and STOURTON moved Amendment No. 15:

Page 34, line 22, at end insert— ("( ) Without prejudice to the powers conferred by the previous subsection 2, the Secretary of State shall, not later than the coming into force of section 35 of this Act, direct that section 35 shall not apply to the carrying out of any operations for the extraction of minerals which are conducted in accordance with a specified Code of Practice: and the said Code of Practice shall be drawn up after consultations with representatives of the operators concerned.").

The noble Lord said: When we were on Second Reading The noble Baroness said (it is in column 461 of the Official Report, if your Lordships want to see it) that the Government had undertaken to exempt such [mineral extraction] operations by order in return for adherence by the industry to an agreed code of practice which is now being prepared".

The purpose of this Amendment is to incorporate in the Bill the declared intention of the Government. While I am on this subject, perhaps I may say that I hear rumours that the first draft of the code of practice is not at the moment particularly pleasing to the industry. I beg to move.

Baroness STEDMAN

On Second Reading I gave the undertaking that the Government would exempt mineral operations by order in return for adherence to an agreed code of practice. This was not a concession which was wrung from us: the proposal was made on the Department's initiative because we saw this route as the best one for both parties to take. As The noble Lord has said—and my understanding is the same as his—the first draft has been found somewhat alarming (shall we put it no higher than that?). This surprises us, because the requirements are in general terms in order to encourage agreements by negotiation where the archaeologists seek opportunities. We supposed this to be in accordance with the attitude of the industry; we now know that it was not. But that draft is only the beginning of a dialogue, and no inflexible positions have been adopted by either party. With all the goodwill in the world, it does not seem reasonable to bind the Secretary of State to grant exemption on the basis of a hoped-for but not yet certain agreement about a code of practice. We think that that would tilt the scales too much to one side. The consultations have been initiated, they have not broken down, we arc both looking at it again and we hope that negotiations will continue and a satisfactory code of practice will ensue from them.

Lord MOWBRAY and STOURTON

I am grateful to The noble Baroness. I should like to consider exactly what she has said. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 agreed to.

Clause 39 [Power of investigating authority to investigate in advance of operations notice any site which may be acquired compulsorily]:

6 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 16: Page 37, line 20, leave out from ("Where") to("an") in line 21.

The noble Lord said: In moving this Amendment, I should like to speak also to Amendment No. 17. The sole purpose of these Amendments is to ensure that the investigatory authority exercises a right of entry only when there is a real prospect of the purchasing authority's proposals being inplemented. Otherwise the power seems to be somewhat open-ended. I beg to move.

Baroness STEDMAN

I am grateful to The noble Lord for putting down this Amendment. I am in sympathy with its purpose and accept that there was a chance, albeit a slim one, that an investigating authority might have sought to exercise its right of entry otherwise than at the behest of the purchasing authority. The Amendment needs further study. I undertake to give this and will move a Government Amendment to achieve the desired purpose at Report stage.

Lord MOWBRAY and STOURTON

I am grateful to The noble Baroness and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 39 agreed to.

Clause 40 [Other powers of entry on site of operations covered by an operations notice]:

Baroness STEDMAN moved Amendment No. 18: Page 38, line 25, leave out ("for") and insert ("on").

The noble Baroness said: This is a very short drafting Amendment. It corrects an error in the current print of the Bill. The title of the Royal Commission is the "Royal Commission on Historical Monuments". We had better have the record straight.

On Question, Amendment agreed to.

Clause 40, as amended, agreed to.

Clauses 41 and 42 agreed to.

Lord MOWBRAY and STOURTON moved Amendment No. 19: After Clause 42, insert the following new clause:

Trespassing while using metal detector

(".—(1) If a person enters or is on any land as a trespasser while he has a metal detector with him he shall be guilty of an offence and liable on summary conviction or, in Scotland, on conviction before a court of summary jurisdiction, to a fine not exceeding £200.

(2)In this section— Metal detector" has the same meaning as in section 42(2) above; and Land" includes land covered with water.

(3)In any proceedings for an offence under subsection (1) above, it shall be a defence for the accused to prove any matter which would have been a defence to an action at law for such trespass save and except that the leave or licence of the occupier of the land so trespassed upon shall not be a sufficient defence in any case where the landlord lessor or other person shall have the right of ownership of objects of archaeological or historical interest on such land by virtue of any reservation or otherwise, and that the lord or steward of the Crown of any manor lordship or royalty or reputed manor lordship or royalty shall be deemed to be the legal occupier of the land of the wastes or commons within such manor lordship or royalty or reputed manor lordship or royalty.").

The noble Lord said: We here come to a fairly substantial Amendment for which I make no apology, and I shall be grateful if The noble Baroness is able to help me on it. During the Second Reading I commended the Government very much on Clause 42 of the Bill which deals with metal detectors. The noble Baroness was kind enough to write me a letter since then agreeing that there were things which could still go wrong and the Bill obviously cannot, as it stands, take care of all the offences which we could think of. We left it with good intentions on Second Reading. This is an attempt to try to put a few more teeth in the good intentions of curbing the dangers of metal detectors. There are still grounds for fairly serious concern.

In particular, it has been brought to my attention that Clause 42(6), which deals with metal detectors, says: In any proceedings…it shall be a defence for the accused to prove…that he used the metal detectors for a purpose other than detecting or locating objects of archaeological or historical interest…".

This would seem to offer a cast-iron defence to any metal detector user who is caught red-handed on a scheduled site or even on a designated archaeological area but who has not actually started digging. He need only argue that he was looking for modern coins, rings and so on which might have been dropped by visitors to the monument, and not for antiquities: and he would then be home and dry.

The present law on causing damage to ancient monuments has proved somewhat hard to enforce. It is thought that law officers are somewhat unwilling to initiate prosecutions because of the difficulty of proving damage other than the actual destruction of monuments by excavations, et cetera. I think that this long-awaited and welcome improvement to the law is slightly wide. On the matter of the actual metal detector user on private land and causing a trespass, one could argue for and against the case for allowing the metal detector to operate with the land owner's permission on land that is not scheduled or otherwise protected. But is it not indefensible that, without the permission of the owner or the occupier of the land, a detector user can produce substantial financial rewards for himself?

I agree that normally the rewards will not be very high. Nevertheless, the offence is still there. I should have thought it to be in the interests of everyone (except, perhaps, the private metal detector users and the manufacturers) to outlaw trespass on private land with metal detectors. Many kinds of trespass are already a criminal offence; and from the legislation it is possible, surely, to work out an appropriate form of words. The most obvious example is the trespass provisions of the Firearms Act 1968, Section 20(2), where a person commits an offence if while he has a firearm with him he enters or is on any land as a trespasser and without reasonable excuse, the proof whereof lies on him. There is an even better parallel in Section 30 of the Game Act 1831 which deals with trespass in search of wild animals and birds which are not subject to any clear legal ownership—as is the case with many archaeological finds of the sort that the metal detector users are seeking. This section also covers the question of reserve game rights, which can be paralleled in the land owner's reservation of any right in respect of antiquities in tenanted land.

The terms of the draft of my Amendment which is before the Committee will, I believe, go far to deal with this matter. It would be not only to the archaeological interest but also to that of many landowners and tenant farmers in many parts of the country who are becoming heartily sick of the antics of the misguided and greedy individuals who trample without permission over agricultural and other land with their metal detectors and, in the great majority of cases, without intention to hand over their finds to the landowners. There have been cases, of which I have given The noble Baroness notice, where particular damage has been done without one's being able to enforce the law. I suggest that this addition to Clause 42 a good one and I commend it to your Lordships. I beg to move.

Lord MONTAGU of BEAULIEU

I should like strongly to support this Amendment moved by my noble friend. I speak on behalf of the English Museums Association of which I have the honour to be vice-president. They are concerned; and they welcome this Bill and the proposed penalties. My noble friend has described their main concern, which has been the question of the accused person's proving intent. It is very easy for him to say that he is looking for his fiancee's engagement ring or a dog collar and so on and he would have a cast-iron defence. There is great concern felt by the museums that many valuable archaeological objects are being found, not reported and are being sold out of the country. The museums not only do not know about them but do not have the opportunity of purchasing them if they are available. The Association would like the Government to take this Amendment very seriously. It is important that this Bill has these penalties for private land as well as for scheduled land.

Baroness STEDMAN

The purpose of this part of the Bill is to prohibit the use of metal detectors on the sites of protected monuments. The new clause put so plausibly by The noble Lord, Lord Mowbray and Stourton, seeks to create a new criminal offence of trespass while in possession of a metal detector. That is taking it rather wide. I think it goes beyond the main purpose of this Bill. There may be a case for doing something about metal detectors over land "full stop"; but this Bill is concerned with the protection of the sites of our monuments and scheduled works and not over land in general. It is outside the purpose of this Bill and goes beyond the clause that we have put forward; because it relates to trespass on any land and not just on land where there are scheduled monuments. It raises wide issues and perhaps ones we ought to consider at some time. I do not think it is right to try to deal with it in the context of this Bill which is concerned with archaeological sites and ancient monuments.

Lord MOWBRAY and STOURTON

Would not The noble Baroness look at what I have put down to see whether she and her advisers can tinker with it in such a way that it would be helpful in dealing with the points in this Bill? I still think there might be room for it, even if she removed the bits where it is too wide and left in the bits which concern this Bill. I still think that there might be scope for improvement to this Bill.

Baroness STEDMAN

I am always willing to look at things and to try to find a way round any difficulties that we may run into. I do not think we are going to have very much success in that; but do not let that prevent me from saying that we will take it back and look at it. However, I cannot hold out a great deal of hope against coming back and saying it is still completely outside the scope of this Bill.

Lord MOWBRAY and STOURTON

Bearing in mind we have further time to consider this Bill at another stage and that The noble Baroness has assured us she will look at the Amendment, albeit without much hope, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 43 agreed to.

Clause 44 [Supplementary provisions with respect to powers of entry]:

Lord MOWBRAY and STOURTON moved Amendment No. 20:

Page 41, line 37, at end insert— ("( ) Any person exercising powers of entry under this Act who does not comply with reasonable requirements or conditions imposed in accordance with the previous subsection shall not be entitled to any statutory protection afforded by the Mines and Quarries Act 1954 or the Health and Safety at Work Etc. Act 1974. He shall be liable for any damage to persons or property which may result from his acts or omissions when he has so entered.").

The noble Lord said: In this Amendment I am trying to bring some fairness to the operators who have onerous obli- gations to their employees and even to invitees. The invitee will not be familiar with the premises upon which he enters and it is therefore reasonable that he complies with the safety requirements of the occupier/owners. If he fails to do so, he should not enjoy, I suggest, the statutory protection afforded to the workforce and, moreover, should be liable for any damage he might cause or dangers he might create. I beg to move.

Baroness STEDMAN

Again, The noble Lord, Lord Mowbray and Stourton, was good enough to provide me with a note of this particular point. We have consulted the Health and Safety at Work Executive during the drafting of the Bill and the particular points covered by this Amendment have been considered. We were advised that no reference to these points was necessary in the Bill since a person who disregards any reasonable steps taken by an employer to discharge his general responsibilities under the safety legislation will do so at his own risk, and the employer will not be responsible for the consequences. Likewise, any person who causes damage to persons or property would be responsible under general provisions of law. Therefore, in those circumstances, with that advice from the Health and Safety at Work Executive I must ask The noble Lord to withdraw his Amendment or not to press it.

Lord MOWBRAY and STOURTON

I am most grateful to The noble Baroness for that information. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clauses 45 to 47 agreed to.

Clause 48 [Recovery of grants for expenditure in conservation areas and on historic buildings]:

6.14 p.m.

Baroness STEDMAN moved Amendments Nos. 21 to 24:

Page 43, line 28, at beginning insert— ("(1A) This section applies to any grant under section 10 above made on terms that it shall be recoverable under this section; but any such grant shall only be regarded for the purposes of this section as so made if before or on making the grant the Secretary of State gives to the grantee notice in writing—

1. (a) summarising the effect of this section; and
2. (b) specifying the period during which the grant is to be recoverable in accordance with subsection (3) below in the case of a grant made for the purpose mentioned in subsection (2) below.

(1B) The period specified under subsection (1 A) (b) above in the case of any grant shall be a period beginning with the day on which the grant is made and ending not more than ten years after that day.")

Page 43, line 29, leave out ("was made under section 10 above") and insert ("to which this section applies was made")

Page 43, line 33, leave out from ("section") to ("for") in line 35 and insert ("have effect where a grant to which this section applies is made to any person")

Page 43, line 41, leave out from ("period") to third ("the") in line 42 and insert ("specified for the purposes of this subsection under subsection (1A) (b) above").

The noble Baroness said: I hope it may be of some help to the Committee if I may say that the Amendments standing in my name on Clause 48 are for the most part drafting, technical Amendments in order to clarify the position. Lord Mowbray and Stourton's Amendments Nos. 25 and 29 are also in this clause and it may be helpful if I formally move my Amendments as drafting Amendments at this stage so that The noble Lords, Lord Mowbray and Lord Montagu, can make their points about the five and 10 years periods. Then we can reply in the light of their remarks. I beg to move.

The DEPUTY CHAIRMAN of COMMITTEES (The Earl of Listowel)

The noble Baroness has moved Amendments Nos. 21 to 24 en bloc. I should point out to the Committee that if Amendment No. 24 is agreed to I cannot call Amendment No. 25.

Lord MOWBRAY and STOURTON

As The noble Lord the Deputy Chairman of Committees has just pointed out, if Amendment No. 24 were passed it would kill my Amendment No. 25. Perhaps on Amendments Nos. 21 to 24 I might speak to my Amendments Nos. 25 and 29. My Amendment No. 29 would similarly be killed by The noble Baroness's Amendment No. 28. I am most grateful to the noble Baroness for dealing with the Amendments in this way. It makes it very much easier for me. It will probably be best if I also speak now to Amendments Nos. 24 and 28. From what I have heard The noble Baroness say previously, the Government have some sympathy with the view that a rigid 10 years is too long a period. The phrase "not more than 10 years" certainly implies a lesser period, as I see The noble Baroness has put down in her Amendment No. 21. Where a grant has been received by a private individual for repairs to his house, or more particularly for maintenance, it is all too likely that the value arising from these repairs or maintenance will have been absorbed in the value of the house well within 10 years, and that the sale proceeds would not reflect the additional value of the grant.

In these circumstances, I suggest that a period of five years would provide a satisfactory compromise between the need to prevent abuse and the need to encourage individuals to make the maximum use of the grant aid system for repairing and maintaining historic properties. Also in the post-war housing financial provisions Acts grants for improvement of houses could be repayable if there were a breach of condition, including an occupation condition, within 10 years of payment of the grants. The period was reduced from time to time by statute and abolished altogether in 1969. However, the present position is that grants are repayable for breach of occupation condition within five years. Is not the situation analogous? I suggest 10 years, even though qualified, seems somewhat onerous, especially where no question of any speculative development or large sums of public money is involved. I hope that The noble Baroness will be able to tell us that the Minister concerned will allow the grant to be written off in five rather than 10 years in the cases that I have enumerated. I beg to move.

Lord SKELMERSDALE

I should like to support my noble friend in this Amendment. I would point out that it is my understanding that the average length of occupation of houses between moves is three years, and therefore would it not be more satisfactory for all concerned if my noble friend's figure of five years was reduced to three years?

Baroness STEDMAN

What we have tried to do in amending this clause is not, as some may believe, to make a comparatively simple clause inordinately complicated, but because doubts were raised as to whether the clause as drafted in the original print of the Bill was perhaps too restrictive. It had been suggested that the original clause would not have given the Secretary of State a discretionary power and that he would have had to impose a condition on each and every grant insisting that, if the building be sold within 10 years, the grant be repaid. That was not the intention of the Government. We are simply concerned to ensure that it is possible to ask for a grant to be repaid if circumstances, at the time when a grant aided building is sold, demand it. Obviously each case must be treated on its merits and it may well be appropriate to insert the full 10 year clause only in the more exceptional cases.

The case where I could envisage that it might be useful is where a property developer buys an old and large house at a time when property values are low, converts it, possibly into flats, doing much of the restoration work with the help of substantial grant aid, completes the work and lets the flats on short leases and, when property prices rise again, is able to sell the property at a substantial profit. At present in this sort of case, the Historic Buildings Council is most unwilling to recommend a grant, because it knows that whatever the profit eventually made there is no certainty that that grant can be recovered, or even if a recommendation is made the Government feel obliged not to act upon it. This clause will enable grants to be made to such schemes—most of which are very worthy—in the knowledge that there is now a full recovery power, if we want to use it; and this is the reason why the Government feel that they must insist on the 10-year provision.

I have listened with interest to The noble Lord and others who have argued since Second Reading for a reduction in the term to five years, but I do not believe, in the circumstances that I have outlined, that that would be enough. The noble Lord can be assured that we should expect to accept the advice of the Historic Buildings Council on the appropriate period, if any, during which repayment could be asked in each individual case. Furthermore, I can assure The noble Lord that even where this condition exists it can still be waived at the discretion of the Secretary of State. I can give further assurance that we should always wish to consult with the Historic Buildings Council s before any decision to demand repayment was finally taken.

Thus, to sum up briefly, while we appreciate The noble Lord's concern, I believe that this clause, if amended in this way, would encourage the Historic Buildings Councils to recommend grants for important buildings—particularly ones which might be converted to an alternative use at quite considerable expense—and that it would not, in fact, discourage anyone from taking up a grant, nor would it provide an unduly onerous burden upon the owners. Grant aid from public money to buildings remaining in private hands is a difficult and emotive question. I believe that up till now we have managed to keep it out of the arena of public controversy and I think that this clause, as we propose it shall be amended, will enable the scope of grant aid to be extended whilst still ensuring that it remains uncontroversial. Therefore, I hope that The noble Lord will see fit not to move his two Amendments and that your Lordships will accept my Amendments.

Lord MIDDLETON

I have listened most carefully to The noble Baroness and I understand that the effect of her Amendment is to give discretion to the Secretary of State as to the period (which shall be not more than ten years) within which a grant for preservation shall be recovered if the grant-aided disposes of his interests in the property. It also ensures that the grantee knows at the time the grant is made the exact period during which the grant may be recovered. This seems to me to be an improvement on the rigidity of Clause 48, as unamended. Nevertheless, the period of ten years, if that be the period of the condition imposed, is, as some of my noble friends have suggested, rather long, if one compares it with other similar legislation. It is, for example, well beyond the time limit imposed in respect of grants made under Section 2 of the Local Authorities (Historic Buildings) Act 1962. Those are repayable if there is a disposal within three years. And, as my noble friend Lord Mowbray has reminded us, under the Housing Act 1974 grants are repayable for the breach of an occupation condition within five years of the payment of grant. I accept the point made by The noble Baroness about certain cases where property is to be sold for a profit, but it is to be hoped that the period will normally be less than ten years; and in this I support my noble friends.

Lord MONTAGU of BEAULIEU

I put down my name in support of this Amendment before having the opportunity of seeing the Amendment of The noble Baroness, and I should like to say that the Historic Houses Association certainly do not quarrel with the principle of repayment of grants. There have been many precedents, and this particularly makes sense where property developers are concerned. When I originally looked at the Bill it appeared, at its face value, that ten years was a little too long and the period too rigidly imposed. However, having listened to The noble Baroness, I am personally satisfied with her statement in Hansard that we shall have the flexibility that we wish to have. So far as I am concerned, I am happy not to move the Amendment, if my noble friend agrees.

Lord MOWBRAY and STOURTON

I, too, am grateful to The noble Baroness. I understood her words to mean that the Minister would consider a term possibly down to five years or even less. I agree with my noble friend Lord Montagu of Beaulieu.

On Question, Amendments Nos. 21 to 24 agreed to en bloc.

[Amendment No. 25 not moved.]

Baroness STEDMAN moved Amendment No. 26:

Page 44, line 29, at beginning insert— ("(1A) This section applies to any grant under section 4 of this Act made on terms that it shall be recoverable under this section; but any such grant shall only be regarded for the purposes of this section as so made if before or on making the grant the Secretary of State gives to the grantee notice in writing—

1. (a) summarising the effect of this section; and
2. (b) specifying the period during which the grant is to be recoverable in accordance with subsection (2) below in the case of a grant made for the purpose there mentioned.

(1B) The period specified under subsection (1A) (b) above in the case of any grant shall be a period beginning with the day on which the grant is made and ending not more than ten years after that day.").

The noble Baroness said: This is part of the same Amendment to the clause, to make it, we hope, more amenable and understandable. I spoke to it in my general remarks, and I beg to move.

On Question, Amendment agreed to.

Baroness STEDMAN moved Amendments Nos. 27 and 28:

Page 44, line 30, leave out from beginning to ("is") and insert ("to which this section applies was made")

Page 44, line 34, leave out from ("period") to ("person") in line 36 and insert ("specified under subsection (1A) (b) above in the case of a grant to which this section applies made to any").

On Question, Amendments agreed to.

[Amendment No. 29 not moved.]

Baroness STEDMAN moved Amendment No. 30: Page 44, line 41, leave out ("that day") and insert ("the day on which the grant is made").

On Question, Amendment agreed to.

On Question, Whether Clause 48, as amended, shall stand part of the Bill?

Lord SKELMERSDALE

I do not know whether this is the right moment to ask The noble Baroness a question, of which I am afraid I have not given her notice because it has only recently occurred to me. I notice that this clause refers to the recovery of grants. My question is about the original payment of grants, before any question of whether they are recoverable or not is considered. I see that my noble friend Lord Craigton has tabled an Amendment later relating to parks and gardens. My question is whether grants are in fact payable for parks and gardens, whether or not they are scheduled.

Baroness STEDMAN

They are payable towards the upkeep of parks and gardens when they are part of a listed building or a scheduled building, but we shall no doubt have a very interesting discussion when we get to the Amendment of The noble Lord, Lord Craigton.

Clause 48, as amended, agreed to.

Clause 49 agreed to.

[Amendments Nos. 31–33 not moved.]

Clause 50 agreed to.

Clauses 51 to 60 agreed to.

Clause 61 [Interpretation]:

Lord AVEBURY moved Amendment No. 34:

Page 55, line 17, leave out ("and") and insert— ("(c) any area of archaeological importance; and").

The noble Lord said: The definition of "monument" is of some considerable importance, because the protections given to a scheduled monument in Clause 2 will apply only to those entities which are defined in subsection (7) of Clause 61. These entities may not include work to which your Lordships would wish the protections of Clause 2 to be extended. May I just give one or two examples? First, one might consider a pond which contains sedimentary organic material identifiable as seeds, leaves or insects, which can be dated by various scientific techniques such as radio-carbon dating and thus give scientists important insights into pre-history. That pond could not be scheduled under Clause 2, as the Bill stands, but it could be declared an area of archaeological importance. Thus if "monument" was defined as including an area of archaeological importance, it would enable such an entity to be scheduled. Another example would be what is known as flint scatter, which means the remains or pieces of scrap in an area where artefacts have been made out of flint.

A third example might be a ridge which was left at the edge of a field which had been ploughed, and which would thereby constitute surviving evidence of man's agricultural activity in pre-history, which would not be "work" within subsection (7) (a) of the definition, because it would be only a by-product of the agricultural work which had been carried out by our ancestors on that field. Of course, I should emphasise that if these powers were exercised on agricultural land it would obviously be only in the most exceptional cases and the Secretary of State would have to pay compensation. Having explained the meaning of the Amendment, I hope that the Government will be able to accept this extension of the definition of "monument". I beg to move.

Baroness STEDMAN

I must confess that when I first read the Amendment was a little baffled as to just what The noble Lord was getting at. I now understand perfectly what it is about. Some members of our inspectorate are concerned that the definition of "monument" may not be wide enough to allow for the kind of things which The noble Lord has mentioned, including the scheduling of works such as a "ridge and furrow" field system, or prehistoric ponds and so on. If we embraced those within the definition of "monument", it would mean that there was no limit to what might be scheduled, no matter how inappropriate it may be to ancient monuments legislation. We share The noble Lord's concern. We do not think that he has got it Iright in his Amendment, as it stands. But if he would like to make specific suggestions to me and to my officials, then we can try to get it right at the next stage in a proper definition.

Lord AVEBURY

I am most grateful to the Minister for her accommodating reply. I look forward to the discussion which she kindly offers, and with that I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.33 p.m.

Lord CRAIGTON moved Amendment No. 35:

Page 55, line 22, at end insert— ("(d) any garden or other land which is not contiguous or adjacent to a building.").

The noble Lord said: My Amendment closes a small loophole in the Minister's powers to list ancient monuments. It was brought to my attention at CoEnCo in 1977 by Mr. J. St. Bodfan Gruffyd in his publication, which the Minister has had, entitled Protecting Historic Landscapes, and this is the first opportunity that we have had to close this very small gap. What is missing from this Bill is power to list as an ancient monument a garden or landscape that is not part of the site of the monument. Under subsection (9) on page 55, a site is defined as not only the land in or on which the monument is situated but also any land comprising or adjacent to it. This effectively limits the definition of "monument" in subsection (7) simply to the land comprising or adjoining the monument itself. So that if the garden is not comprised in or adjoining the monument, the Minister cannot schedule it even if he should, or wants to.

Mr. Bodfan Gruffyd has given me two examples of the kind of garden to which my Amendment could, or would, give protection. In Surrey, at Painshill—that is, beyond Esher on the Guildford road—there is a famous 18th century garden which ought to be listed, but it has been created so far away from the house that it would not be protected by this Bill. Again, at Deepdene in Surrey, there is a famous 17th century garden. It is relict, but it is well documented. The old mansion has been replaced by an office block and an application for further office building is threatened. Surely, there should be power to resist expansion such as this, if resistance proves to be justified.

So far, this is a good case on its own merits, but there is another very important factor. The Minister can already—believe it or not—make grants for the upkeep of such separated gardens, though apparently he cannot list them. I refer to Section 12 of the Town and Country Amenities Act 1974. It is very short and worth reading. At the end of Section 4(1) of the Historic Buildings and Ancient Monuments Act 1953, which is headed "Grants for preservation of historic buildings, their contents and adjoining land", it states: or for the upkeep of the garden or other land which appears to the Secretary of State to be of outstanding historic interest, but which is not contiguous or adjacent to a building which appears to him to be of outstanding or historic architectural importance".

My Amendment follows exactly the wording of that section. I propose that a monument should also be, any garden or other land which is not contiguous or adjacent to a building".

I hope that the Minister will accept this Amendment, as I cannot find the substance of it anywhere else in this Bill. The Minister should not have to use these powers if financial stringency prevents it at the moment. But, as has been said before, this is the kind of Bill that goes through only once in a lifetime and it would be quite monstrous to let this golden opportunity go at this point. I beg to move.

Baroness STEDMAN

As The noble Lord has said, historic gardens and parks play a very important part in our heritage, but proposals to protect them statutorily inevitably raise difficult questions for us. Assistance is already available for the upkeep of historic gardens, whether or not associated with an historic house, and that is done on the advice of the Historic Buildings Councils. Garden buildings and other structures or remains can be listed as buildings of special interest or scheduled as ancient monuments. Local planning authorities can, and should, consider the preservation of historic gardens and other historic lands-scapes in carrying out their functions under the Planning Acts, both in the making of plans and in exercising development control. We are not quite sure why The noble Lord thinks we need to do more about historic gardens and landscapes, because the means are there now to help them.

I have explained some of the objections to applying the ancient monuments code to parks and gardens. Some of them would not apply to the compiling of a non-statutory list, but that remains quite a major undertaking, and I must make it clear at this stage that there is no prospect of the Government being able to provide the inspectors of ancient monuments or other civil servants to take up such a task.

But the House may be interested to learn that, as a pilot project, the Manpower Services Commission have agreed to fund a preliminary listing of historic gardens and parks in the Bristol region—in Avon, Gloucestershire and Wiltshire. It will be carried out by five graduates in landscape design, planning or management or landscape art history, under the supervision of Mr. Bodfan Gruffyd—I hope that I have pronounced his name correctly; he told me on Friday to call him "Bod" as that would be easier. He is in the Landscape Practice Office in Gloucestershire College of Art and Design, at Cheltenham. This pilot scheme may very well clarify the criteria which ought to govern the selection of historical gardens and parks, and help us to assess what benefits might be derived from a national list.

Of course, we are as a Government in no way committed to following up the pilot project, but we are certainly interested to see what comes out of it and would be willing to examine its results, in the same way as I should be very happy to have further talks with The noble Lord, Lord Craighton, to see whether we can work what he wants into the Bill, or satisfy him that the Bill already covers what he needs to do.

Lord CRAIGTON

I am afraid that I cannot be satisfied that the Bill already covers what I want to do. If Mr. Bodfan Gruffyd is listing these gardens, and he lists separated gardens, then the list will be valueless, because the Minister cannot list them. I am saying that this should be included in the Bill, even if the Minister does not at this time use the powers given to him. After all, large chunks of the Control of Pollution Act of two or three years ago still have not been implemented. Nevertheless, let us include the powers in the Bill, even if the Minister says that he does not want to use them, or cannot afford to use them immediately. Therefore, I should like to continue to press this matter. In the meantime, I beg leave to withdraw my Amendment. Later on, I hope to have a word with The noble Baroness about the matter. I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 61 agreed to.

Clause 62 [Special provision for Scotland]:

6.41 p.m.

Baroness STEDMAN moved Amendment No. 36:

Page 57, leave out lines 5 to 8 and insert—

("The Ancient Monuments and Archaeological Areas Act 1979.

The function under section 44(9) in respect of land held by excepted statutory undertakers and the power of the Treasury to determine questions under section 50(4) are not included.")

The noble Baroness said: Part III of Schedule 10 to the Scotland Act 1978 lists matters in enactments which are devolved or non-devolved. As ancient monuments are a devolved matter, most of the provisions of the Bill are accordingly devolved. Clause 62(3), as introduced, reserves to the Treasury the power in Clause 50(4) to determine questions as to what authority is the appropriate authority in relation to Crown land. The object of the Amendment is to reserve to the Secretary of State—that is, to a Westminster Minister—part of the function under Clause 44(9) of the Bill. Clause 43(3) provides that the power to survey shall include a power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals. Clause 44(9) provides that this power to search and bore shall, in the case of statutory undertakers who object to the use of this power, on the ground that it would be seriously detrimental to the carrying on of their undertaking, not be exercised except with the authority of the Secretary of State. In the case of statutory undertakers in the devolved fields—for example, the Scottish Transport Group—it is right that decisions should be taken by a Scottish Secretary: that is, an Assembly Minister. But in the case of statutory undertakers in non-devolved fields such as electricity, the decision should be taken by a Secretary of State of the Westminster Government. This is the effect of the Amendment. There are likely to be very few cases where a ministerial decision will be required, but it is desirable that that responsibility should rest with the Minister of the Scottish Assembly or of the Westminister Parliament, as appropriate. I am sorry to raise again the question of devolution but it comes into all of our legislation now. I beg to move.

Baroness WHITE

Can my noble friend assure me that the position in Wales is unaffected?

Baroness STEDMAN

Yes, it is.

On Question, Amendment agreed to.

Clause 62 agreed to.

Remaining clauses agreed to.

Schedule 1 [Control of works affecting scheduled monuments]:

Baroness STEDMAN moved Amendment No. 37: Page 63, line 40, leave out ("(3)") and insert ("(2)").

The noble Baroness said: This is a pure drafting Amendment. It changes an incorrect reference to subsections (3) to (8) of Section 210 of the Local Government (Scotland) Act 1973 to subsections (2) to (8). I beg to move.

On Question, Amendment agreed to.

Schedule 1 agreed to.

Schedule 2 [Designation orders]:

Lord MOWBRAY and STOURTON moved Amendment No. 38:

Page 64, line 9, after ("concerned") insert— ("( ) give notice of his proposal to such persons as appear to him to be representative of the owners, occupiers or users of the land concerned;").

The noble Lord said: Apart from giving specific notice to the local authorities, it seems to be only right that specific reference should also be made to those with a genuine interest and a particular economic stake in the land which is likely to be designated. This is common procedure in legislation concerning certain sections of the community which are affected: for example, the Control of Pollution Act 1974. Therefore, it should be incorporated here. I beg to move.

Baroness STEDMAN

The Secretary of State must consult the local authorities and must advertise his proposals in the London Gazette and in the local papers. Any response to this publicity will, of course, be duly taken into account and, as a matter of good administration, we shall consult much more widely than that. However, I do not think I can accept that it would be right to bind the Secretary of State to give notice of his proposals to those who, in the words of The noble Lord, appear to him to be representative of the owners, occupiers or users of the land concerned". This is too vague to enable him ever to be sure that he has completely fulfilled the statutory requirement. I am sympathetic with the principle of the Amendment. I can give The noble Lord the assurance that we shall have the widest possible consultations but we think that the Amendment, as at present drafted, is rather too vague to be able to operate on satisfactorily.

Lord MOWBRAY and STOURTON

I must confess that I am not very happy with that answer. It seems to me to be a minimal requirement that the owners should be consulted. The occupiers or users are the alternatives. I suggested that the owners are on one side and that the occupiers or users are on the other. As I say, I am not totally happy with the answer which has been given by The noble Baroness, but perhaps I could think about it and have a word with her later on. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness STEDMAN moved Amendment No. 39: Page 64, line 38, leave out ("with or without modifications") and insert ("either without modifications or with such modification only as consists in reducing the area affected").

The noble Baroness said: With permission, I shall speak to Amendments Nos. 39 and 40. The purpose of these Amendments is to prevent the Secretary of State, when making a designation order designating an area as being one of archaeological importance, from modifying the draft order otherwise than by reducing the area proposed to be designated. This brings paragraphs 6 and 12 of the Schedule into line with paragraph 13, which is the confirmation by the Secretary of State of a designation order made by a local authority, and also Clause 33(4) of the Bill: that he can reduce an area but not extend an area. I beg to move.

On Question, Amendment agreed to.

Baroness STEDMAN moved Amendment No. 40: Page 65, line 38, leave out ("with or without modifications") and insert ("either without modifications or with such modification only as consists in reducing the area affected").

On Question, Amendment agreed to.

Baroness STEDMAN moved Amendment No. 41: Page 66, line 27, leave out ("affected") and insert ("made").

The noble Baroness said: This is a pure drafting Amendment. A reduction is "made", and not "affected".

On Question, Amendment agreed to.

Schedule 2 agreed to.

Schedules 3 and 4 agreed to.

Schedule 5 [Enactments repealed]:

Baroness STEDMAN moved Amendment No. 42:

Page 74, line 7, at end insert—

("1974 c. 32.

The Town and Country Amenities Act 1974.

In section 13(1) paragraph (c) and the word "and" immediately preceding that paragraph.")

The noble Baroness said: This repeals an incorrect collective title which treats the Act as part of the legislation relating to ancient monuments. I beg to move.

On Question, Amendment agreed to.

Schedule 5 agreed to.

House resumed: Bill reported with the Amendments.