HL Deb 19 March 1979 vol 399 cc941-63

6.28 p.m.

Report received.

Clause 1 [Schedule of monuments]:

Viscount HANWORTH moved Amendment No. 1:

Page 2, line 21, at beginning insert— ("Subject to the provisions of subsection (5A) of this section").

The noble Viscount said: My Lords, I gather that, as is so often the case, it is important to find time in another place for this Bill—and it is a good Bill. I therefore do not propose to press any of the Amendments that I put forward today, but what I hope the Ministry will do is consider some of them very seriously, with the possibility of bringing them forward in another place later. The first Amendment is a paving Amendment for Amendment No. 5, but I think it would be to the convenience of the House if I speak in general terms on Amendments Nos. 2, 3, 4 and 5, because they have the same purpose, although I shall probably formally move some of them separately in order to put them on the record. The object of these Amendments is to provide for greater consultation and discussion before a monument is descheduled. Amendment No.5 is to see that adequate publicity is given before descheduling by requiring notice in the London Gazette or the Edinburgh Gazette and in at least one local newspaper; also for proper time to be allowed for representations to be made. Amendment No. 4 overcomes the Government's objection that a monument may have ceased to exist and a publication of intention to deschedule would be a waste of time. Amendment No.3 requires that interested bodies or organisations be consulted. Amendment No.2 requires consultation with the Ancient Monuments Board.

The need for these measures is, I think, exemplified by the bridges on our canals. They are very important and a feature of our canals to canal-users. Many of them are privately-owned. I think that the British Waterways Board and all users of the water would be rather disturbed if these were descheduled without any opportunity for the British Waterways Association on their behalf to raise objections if this seemed reasonable. Amendment No. 6, is a drafting Amendment. I beg to move Amendment No. 1.


My Lords, I am grateful to the noble Viscount for speaking to Amendments Nos.1 to 6. I am grateful to him for raising these questions. I am aware that there has been some concern and, I believe, some misunderstanding about proposals which would allow the Secretary of State to exclude a monument from the Schedule or to amend an entry. I am also glad that he has spoken to his Amendments comprehensively, and I propose to reply in the same way.

I will try to make absolutely clear what is, and what is not, the intention of subsection (5) of Clause 1. Its sole purpose is to provide proper machinery for what already happens in practice. It will not provide an alternative to the grant of scheduled monument consent after due application and consideration, including the opportunity of a public local inquiry or hearing.

Under the existing legislation, there have always been cases where, for one reason or another, it has been necessary to remove a monument from the next published list. Three recent examples may be of interest. A Martello Tower in East Sussex was descheduled after it had been converted into a dwelling-house and, therefore, taken outside the scope of Ancient Monuments legislation. That tower is now a listed building. A medieval chapel site was similarly descheduled after the site had been excavated completely by archeaologists, since the monument as such no longer then existed. Dunham Bridge, on the border of Nottinghamshire and Lincolnshire, was descheduled after the owner had demolished it with the Department's agreement, after every effort had been made to find an alternative solution.

You may be assured that descheduling will only take place in similar circumstances to those I have described or where later knowledge shows that the monument was not what it at first appeared to be: a windmill mound wrongly taken to be a burial mound, for example. Descheduling is merely the inevitable recognition of something that has happened or has been discovered. Descheduling would not be appropriate where a monument continues to be of national importance and—I repeat this with emphasis—it would not be proper to use it to relieve a developer of the statutory requirement to seek scheduled monument consent for any proposed work.

Clause 1(5) also provides for amendment to an entry in the Schedule. This again is something which already happens in practice. It may he necessary to correct an error in some point of fact; or it may be decided, on the advice of the Inspectorate and in consultation with the Ancient Monuments Board, that the schedule area should be extended or reduced. These arrangements have been the practice ever since the Act of 1913. I am not aware that anyone, during those 66 years, has called them in question, but the opportunity provided by this Bill has been taken to provide proper machinery. The noble Viscount is now proposing that we should create an elaborate new procedure. I do not believe it will be helpful to do so. Neither do we think it will be necessary.

May I deal first with his point that there should be an obligation always to consult the Ancient Monuments Board about these particular matters? Under Clause 22 of the Bill, the Board has a right to advise about any relevant matter, and specific mention is made of certain potentially sensitive issues. including descheduling. The Board are the Secretary of State's statutory and trusty advisers. It is unthinkable that the Department would not seek the Board's advice on any such question wherever there was any point at all in doing so. But there could be cases where there was no point: for example, the Board might already have been consulted in relation to an application for scheduled monument consent and advised that the application should be granted, conditional perhaps on a full excavation; the monument would be destroyed; descheduling would be a con- sequential formality. We do not want to be obliged to waste the Board's limited and valuable time. If, however, the Board were to ask to be consulted or notified about every case in any of the categories in Clause 22(7) (including descheduling) I assure your Lordships that the Department would readily comply with that request. In relation to descheduling, notification would provide a safeguard with less risk of wasting time.

The noble Viscount has also suggested that the Secretary of State should consult such organisations and bodies as appear to him to have an interest in any such proposal. I trust that what I have already said about the purpose of this provision has demonstrated that there would generally be no benefit to be gained from such consultation. Where it could be helpful I assure your Lordships that the Department will continue to consult as it has done on occasion in the past, and will inform interested bodies when such action has been taken. But we do not need a statutory provision to this effect.

The noble Viscount would limit by statute the grounds for descheduling so that this could only be done where either the monument had ceased to exist or where it was no longer in a condition justifying its inclusion in the Schedule. Certainly, these are, broadly, the reasons for descheduling, but they are not the only reasons: it is, as I have shown, necessary to deschedule when a monument becomes occupied as a dwelling so that the protection of listing as an historic building, where appropriate, may apply; there is also the occasional case where a mistake has been made in the first instance. Neither of these cases would be covered by the noble Viscount's Amendment; the monuments in question would have to remain on the Schedule forever. What I believe is really required is not an exclusive list of grounds for descheduling but a firm assurance that descheduling will never he used for inappropriate or improper purposes. That assurance I gladly give.

Finally, the noble Viscount would require that all proposals for descheduling or amendment must be advertised and provisions made for the consideration of representations and objections. I hope I have demonstrated that this is unnecessary and that it would generally be a waste of public time and money. The moment for such public advertisement is not on scheduling or descheduling. It comes when an application is made for scheduled monument consent to carry out works, and it will be done then, whenever it may be appropriate, at the Department's expense, so that the views of all concerned may be considered.

The noble Viscount has said that the British Waterways Board are concerned that the Department might deschedule, for example, a canal monument such as a bridge which is part of the amenity of the waterway or liable to affect the safety of the waterway. The only occasion the Department would have for descheduling a bridge would be after it had lost its archeological value; for example, by being strengthened with modern material or because it had been demolished. In either case there would have been application for consent and the Department would have notified all interested bodies, including the British Waterways Board, about such an application. Scheduling has no effect on responsibility for the safety of a structure and in the case of a privately-owned bridge over a waterway, the owner is personally responsible, and his responsibility would be in no way lessened if the bridge were descheduled. In so far as any works on the British waterways or any monuments are concerned, I am completely satisfied that my Secretary of State would make sure that the British Waterways Board knew what was in mind and would be taking the necessary advice from them. In the light of this, I hope that the noble Viscount will feel that we have been able to answer most of his points; and, as he said he is not proposing to press his Amendments tonight, I hope that he will also consider that it is not necessary to raise them at a later stage.


My Lords, I find the Minister's reassurance covers most of the points, so I shall withdraw this Amendment. I propose to move the next Amendment formally and withdraw the others in this set.


My Lords, may I ask a question? I do not know whether the Minister can answer it immediately. Is it really so that strengthening a scheduled building with modern materials makes it eligible for withdrawing from the Schedule?


My Lords, before the noble Baroness answers that point, may I put one further point which arises out of her comprehensive reply to the noble Viscount, Lord Hanworth? I think she said when discussing the provisions of Clause 22(7) that if the Ancient Monuments Board felt it necessary to offer any advice to the Secretary of State with respect to any of the matters covered by that subsection, the Secretary of State would always be bound to receive such advice; in other words, the initiative was in the hands of the Ancient Monuments Board and not the Secretary of State. This is a very important point of interpretation which is not absolutely clear from the wording.

I wanted to ask the noble Baroness something which arose from an earlier discussion; that is to say, whether it would be the normal practice of the Ancient Monuments Board to include any such advice as given under subsection (7) in their annual reports. This would be an extremely important safeguard that everyone would know what advice was given to the Secretary of State and then if he ignored it people could evaluate the decision in the light of those representations. If the noble Baroness could clear that point up, it would be most helpful.

Baroness STEDMAN

My Lords, I am grateful to the noble Lord. In so far as modern materials are concerned, it depends of course on the extent to which one uses modern materials as to whether one completely destroys the ancient monument that one is trying to protect. If we have reached that stage then the monument would be a candidate for descheduling. In so far as the advice of the Ancient Monuments Board is concerned, they are the Secretary of State's advisers and they have the right to come forward and offer him advice at any time or on any particular cause for concern.

The noble Lord, Lord Avebury, raised the question of whether they would compulsorily include their advice to the Secretary of State in their annual reports. I took advice on this and I am told that what is in the annual report is entirely a matter for the Ancient Monuments Board. I am quite satisfied that if there was anything that they considered controversial, they would have no hesitation whatsoever in publishing it in their annual report so that everyone knew where there had been some disagreement at some time. It does not appear to happen that way at the moment and I hope it never will.

Amendment, by leave, withdrawn.

Viscount HANWORTH moved Amendment No. 2: Page 2, line 21, after ("may") insert ("after consultation with the Ancient Monuments Board").

The noble Viscount said: My Lords, I am most reassured by what the noble Baroness has said. It would still be a good thing if in all these cases the Ancient Monuments Board were consulted and their point of view considered. It could be just a formality which will not take any time. It would ensure that everything which the Department are proposing to do has been done. There are always slip-ups and if the Ancient Monuments Board have it on their agenda there is just that possibility of picking something up. I should feel very happy if this could be reconsidered. I do not propose to press this Amendment. I shall wait to see whether anybody else wishes to speak.


My Lords, I should like to ask the Minister whether the Amendment is not implicitly dealt with by the normal procedures of the Ministry. Is it possible that the Ministry could take a decision without consulting the Ancient Monuments Board? If that were the case, the noble Viscount's Amendment might be unnecessary.

Baroness STEDMAN

My Lords, we feel that the Amendment is unnecessary. Descheduling is restricted to the factual situations; for example, where the monument no longer exists. There will be a statutory requirement under Clause 1(6) to inform the local authority and owner occupier concerned in the action to be taken, and we think that there seems little point in a statutory requirement to consult on matters about which there can generally be no dispute. If the noble Viscount is still not happy, I am prepared to have further talks with my adviser and come back to him before the next stage. We think at the moment it is quite unnecessary.


My Lords, I beg leave to withdrawn the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3, 4, 5 and 6 not moved.]

Clause 30 [Disposal of land acquired under Part I]:

6.47 p.m.

Viscount HANWORTH moved Amendment No. 7:

Page 29, line 34, at end insert— ("(5) No land shall be sold under this section without first being offered to the original owner from whom it was acquired compulsorily or his successors for sale at an open market valuation, which failing agreement shall be fixed by the District Valuer.").

The noble Viscount said: My Lords, this Amendment is to ensure that land acquired in some cases compulsorily must first be offered to the original owner or successors before being sold on the open market. I would have thought that this was a most important provision. I should be interested to know what the Minister has to say on the subject. I beg to move.

Baroness STEDMAN

My Lords, as I understand it, the intention of this Amendment is to ensure that, when a monument or land which has been acquired compulsorily under the provisions in the Bill is to be disposed of, it is first offered back to the original owner or his successors. Since the Crichel Down case of the 1950s this has indeed been the practice of Government Departments and local authorities. You have my assurance, my Lords, that the established practice will be followed in the rare event of a proposal to sell an ancient monument or associated land. If one were going to make statutory provision about the matter, one would want to do it in a Bill that had general application, and not in an Ancient Monuments Bill. I hope that, because of my assurance, the noble Viscount is satisfied that his Amendment is unnecessary and that indeed good practice is already followed by the Department.


My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

Baroness STEDMAN moved Amendment No.8: Page 37,line 20, leave out from beginning to ("authorise") in line 22 and insert ("If an authority possessing compulsory purchase powers notifies the investigating authority for any area of archaeological importance that it proposes to carry out, or to").

The noble Baroness said: My Lords, this Amendment, in a slightly different form, was proposed by the noble Lord Lord Mowbray and Stourton, during Committee stage. I said then that the Government sympathised with it in so far as there could have been a chance that an investigating authority might have sought to exercise its right of entry otherwise than at the behest of the purchasing authority. The Amendment I am now proposing has the same effect as Lord Mowbray and Stourton's Amendment. I beg to move.


My Lords, I am most grateful to the noble Baroness and the Government for bringing forward this Amendment. At Committee, she said they would consider this. This is a very satisfactory way of dealing with the situation and I should like to thank the noble Baroness.

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

Lord MOWBRAY and STOURTON: moved Amendment No. 9: Page 40, line 45, after ("house") insert ("or any garden or other land used for the amenity or convenience of a dwelling-house").

The noble Lord said: In this Amendment I am merely trying to get from the noble Baroness and the Government a matter of definition. As the Bill is written, it appears by implication to give a right of entry to the garden of a dwelling-house for the purposes of the Act. This is a new power. In the Ancient Monuments Act 1931 these powers did not exist but now it looks as though a dwelling-house or building, park, garden, pleasure-ground or other land used for the amenity of convenience of a dwelling-house is excluded from the powers of forcible entry without the owner's consent. I do not for one second believe that the Minister or the Government intend this to be so, and I put down this Amendment chiefly to try to get an answer to that point of suspicion. I beg to move.

Baroness STEDMAN

My Lords, this is the Amendment which seeks to amend Clause 44 on lines which are partly the same as those in Section 9 of the Ancient Monuments Act 1931. When the Bill was being drafted this clause was very carefully considered. The Government have no wish to seek needless powers to invade the privacy of owners or occupiers of land; but none the less important ancient monuments are sometimes to be found in gardens and similar land and I can see no reason why such monuments should not, like any others, be investigated, scheduled where appropriate and subsequently inspected from time to time.

The right of entry proposed in this clause like all rights of entry proposed in the Bill, would be exercised with discretion. I appreciate the noble Lord's concern, but I cannot agree that where a monument is perhaps in danger it should be impossible for us to obtain entry. I must advise the House that this Amendment as it stands is not acceptable to us. There are not very many of these monuments in private gardens. We have got parts of Hadrian's Wall which come in people's gardens and we have visible remains of the Archbishop's Palace at Otford in Kent. We are indeed giving grants for the repair of a garden wall in Winchester which is scheduled, and there are Tudor conduit houses in the gardens of houses in Richmond in Surrey. At least one of those is in the guardianship of the Department. Those are the kinds of instances where we think it is right and proper that we should be able to get in to make sure that they are being kept in a state of repair and are being looked after; but they are powers that will be used with very great discretion.


My Lords, I am grateful to the noble Baroness for the way she has explained the Government's intentions. I appreciate all the points she has made. I can think of one of the three areas at Borough-bridge in Yorkshire which is in somebody's garden, which is well looked after and the owners have had no cause to complain. Bearing in mind that this is a limited application and that the possibility of use of this clause is limited, and also bearing in mind the Minister's explanation, I am happy to seek leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 45 [Expenditure on Archaeological Investigation]:

6.53 p.m.

Baroness STEDMAN moved Amendment No. 10:

Page 42, line 32, at end insert— ("(4) Without prejudice to the application, by virtue of section 53 of this Act, of any other provision of this Act to land which is not within Great Britain, the powers conferred by this section shall be exercisable in relation to any such land which forms part of the sea bed within the seaward limits of United Kingdom territorial waters adjacent to the coast of Great Britain.").

The noble Baroness said: My Lords, we have a couple of Amendments here on the same lines: one is in the name of the noble Lord, Lord Fletcher, and the other is my own. The Amendment that I am moving is intended to meet the wish of the noble Lord, Lord Fletcher, that Clause 45 should be extended to apply to the seabed where it is considered that the seabed may contain an ancient monument or anything else of archaeological or historical interest. Clause 53, which relates to monuments in territorial water, only applies with respect to monuments which have been discovered and scheduled. I have adopted the suggestion of the noble Lord, Lord Fletcher, that Clause 45 should be extended to cover the seabed. It is unnecessary to refer to the sea shore, since that is already covered. I beg to move.

Viscount HANWORTH moved Amendment No. 11:

Page 42, line 32, at end insert— ("(4) In this section 'land' shall include the sea bed and the sea shore.").

The noble Viscount said: My Lords, I put down my name in support of the noble Lord, Lord Fletcher, but due to some error it does not appear on the Marshalled List. Nevertheless, he has asked me to move his Amendments for him. I am not certain how far the Amendment we have just agreed covers the points that I want and so I will speak to them.

It would be for the convenience of the House, I think, if I speak in general terms again to this Amendment No.11 and also to Amendments Nos.14 and 16. The object is to put the sea shore and the seabed on the same footing as land. This Amendment, No. 11, permits the Secretary of State to assist in or defray or contribute to the cost of archaeological investigation, in the same way that this assistance can be given for land. It seems to me that this is really only reasonable and it does not seem to me to be covered under the Bill: I may of course be wrong. I beg to move.

Baroness STEDMAN

My Lords, as I said in moving the previous Amendment, we accept the desirability of extending Clause 45 to cover the seabed with a view to enabling archaeological investigation thereof in appropriate cases. There is no present intention of incurring such expenditure but it is conceivable that a situation could arise where there is a reasonable case for doing so. Accordingly I agree that we ought to ensure that the Secretary of State or the local authority should not be frustrated just because we have not got statutory powers there. I believe that if the noble Viscount will have another look at my Amendment No.10 he will find this more effectively achieves his purpose and that in particular there is no need for the Amendment to mention the sea shore since the sea shore is already within the scope of this clause.

The noble Viscount also spoke to Amendment No. 14; he referred to Nos. 14 and 16. On No. 14, I think the main aim is to allow parts of the seabed to be designated as areas of archaeological importance. As I will explain, the purpose of the provisions in Part II of the Bill is to provide the opportunities for archaeological investigation, and more particularly excavation, prior to operations which will disturb or destroy archaeological strata. The provisions in question have not been designed for, and indeed do not suit, the seabed. I concede that we should not preclude the possibility, in very rare and special cases, of marine rescue archaeology by agreement; but I must say quite plainly it is not the Government's intention to bring the wholly inappropriate provisions of Part II to bear on the seabed. Areas of archaeological importance will not be designated at sea. We have provided that a monument of national importance in territorial waters may be scheduled so long as it is not otherwise protected under the Protection of Wrecks Act. Once it has been scheduled, all the other provisions of the Bill will apply to the monument, including the relevant provisions of Part III. That, I believe, is the way to deal with this particular problem rather than by applying the provisions of Part II of the Bill. The provisions of Part III already apply in relation to the schedule of monuments in territorial waters and in relation to such monuments when they are scheduled. The Government see no need to make any express provision for the application of Part III of the Bill in the context of Clause 53. I would hope that the noble Viscount would not press this particular Amendment.

On the other points raised on the Amendments of the noble Lord, Lord Fletcher, the procedure of the designation of an area of archaeological importance is a lengthy one. It would not become effective until some eight or nine months after the publication of the proposal. Designation is not, therefore, appropriate for providing immediate protection to threatened archaeological sites. Scheduling is quite a different matter. Where an ancient monument that the Secretary of State considers to be of national importance is in jeopardy, a notice of scheduling can be served on the owner and occupier without any delay and will take immediate effect. The normal procedure would be to send a preliminary letter to interested parties and to seek their views; then to present those views and the opinion of the Inspectorate to the Ancient Monuments Board and seek their advice, and only then proceed to scheduling. Those are the present arrangements and they will continue to be the normal practice under the Bill. But a monument known to be in danger can be given instant protection under the Bill, no less than under the existing provisions, and, whether a monument is on dry land or beneath the sea, that is the way to deal with the situation which the noble Viscount has in mind, and not designation.


My Lords, I thank the Minister for that reply, which seems to cover the points that were worrying us. I am not absolutely sure whether she said that financial assistance would still be possible in the same way as it would be on land. Perhaps she could just clarify that.

Baroness STEDMAN



Then, my Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 50 [Application to Crown Land]:

7.1 p.m.

Viscount HANWORTH moved Amendment No. 12: Page 46, line 20, leave out from ("land") to end of line 22.

The noble Viscount said: My Lords, I think it will be to the convenience of the House if I speak to this Amendment and Amendment No.13. It appears that a Department of State can do what it likes with a scheduled site on its own land, without consulting the DOE. I hope that I can spear the Minister on Morton's two-pronged fork. Some noble Lords may remember that Morton was Chancellor to one of our Kings, and he was charged with trying to collect money. So that when he went along to a baron and found that he was living luxuriously, he said "You must have plenty of money. You can give to the King". On the other hand, if the baron was obviously not in a very good way, he said "You must be saving a lot of money. You can spare that for the King".

What I am saying here is that if other Departments are always so reasonable and always consult the DOE, there is no reason why they should be specifically excluded from the Bill. If, on the other hand, there are cases—and I believe there are, as there are bound to be—where a Department is considering its own interests, perhaps quite naturally, and is not paying due regard to the archaeological significance of something, then it would he a very good thing if it had to consult the DOE. Whatever the Minister may say, I believe that it is only human nature to give one's own departmental interests higher priority than somebody else's. If that is not the case, I question why it seems to be a ploy of past Prime Ministers to change the Parliaments, but to have the same civil servants appear in different Departments. Presumably, the object is to get closer liaison and a more balanced view over a given area. I beg to move.


My Lords, I should like to say one or two words on this Amendment, in the light of the fact that the Crown is a very much larger owner of property and of land than was ever envisaged at the time of the original Act, or indeed the major revisions of it in 1913 and 1931. We now have enormous property empires under the control of the State, such as the Property Services Agency, the Forestry Commission, the Department of Transport and several others, but the three I have mentioned are the ones that are of greatest importance in this connection.

The Forestry Commission alone takes many thousands of hectares every year for planting, and, obviously, that is essentially to the good of the nation, because it saves foreign currency and enables us to be more self-sufficient in the products of these trees, such as newsprint. But it must be extremely difficult to oversee these operations and to ensure that, when vast acreages are being planted in this way, field monuments and other antiquities are not destroyed by the plough. What is really required is something that was mentioned in an article, which has been drawn to my attention, in the magazine Rescue. I am afraid that I cannot quote the date, but the authors, Angela Jackson and Michael Yates, wrote that it was understood that the Forestry Commission and the DOE were shortly to negotiate a national policy towards ancient monuments. I think that if there were a published code of practice which the Forestry Commission were obliged to follow, or which they voluntarily accepted, this would be a good substitute for accepting the kind of obligations that I apply to private owners of land.

I am afraid that it is true, as the noble Viscount, Lord Hanworth, has remarked, that from time to time one hears stories about the desecration of ancient monuments by these bodies, and I should like to quote one or two instances that have been drawn to my attention, the first being the Forestry Commission itself. It is said that an iron age multi-barrowed hill fort, about four miles east north-east of Clun in Shropshire, was recently damaged by strong winds. I believe that there used to be dense tree cover for these hill forts. Then, subsequently, the Forestry Commission brought in bulldozers, which was probably more a case of bad management than bad conservation and deliberate damage.

The second example that has been quoted to me is of work connected with the Thames barrage, which is going on at the moment, and which I take it must he under the auspices of the Department of the Environment. It is said that 12 Roman lead coffins were unearthed during these works, and that they were hastily buried again. The third example is an important one, because it relates to the construction of roads, an activity which is rather too extensive in this country for my liking. We seem to be bent on establishing a vast motorway network just in time for when the oil runs out, when there will not be any cars to drive on the network. But, he that as it may, for the Chester ring road they certainly went through an area within the medieval town, and just outside the Roman town, which is of tremendous importance and there was hardly any record of what was bulldozed or destroyed. That was in the late 1960s.

Then there is the whole programme of motorway construction, where I am told there is, generally speaking, a fairly good record of co-operation with archaeologists on the M.3, the M.11 and the M.2. But it is far from perfect and the question one would like to ask is: Why should it remain voluntary? I accept, although having had it explained to me several times I do not altogether understand, the reason why Crown land should be exempt in the way it is under the Bill. I agree with the Morton's fork argument of the noble Viscount, Lord Hanworth. But if we have to take it that Crown land is exempt, then it seems to me that to have no obligations publicly laid on the shoulders of these bodies is a dangerous and unsatisfactory way in which to leave the Bill.

Therefore, as an alternative what we should do is try to develop specific arrangements and codes of practice, such as were mentioned in the article that I quoted. Perhaps they would be different in the case of the Forestry Commission, the Property Services Agency and the Department of Transport, because the exigencies of the work are not the same in each case. One can well understand that it would be far more costly to impose delays while archaeologists are evaluating finds in the case of construction work in a large city, or construction work on a motorway, where contractors might want to be expensively compensated for the delays, than in the case of the Forestry Commission. So I am not saying that the same code of practice, or the same arrangements, ought to apply in every case. But what is essential, from the point of view of archaeologists and members of the public as a whole, is that we should know precisely what is required of the developers concerned, and that information should be available in a readily published form.

I hope that the noble Baroness will be able to enlighten us a little on what goes on behind the scenes, because I am convinced from what I have been told that, generally speaking, these public owners of land are at least as responsible as private owners. But I think that the practices of these public owners need to be seen, and one needs to satisfy archaeologists that what they are doing is at least as good as the private owners.


My Lords, if I follow the thesis of the noble Lord, Lord Avebury, I should totally agree with everything that he has said if it were the case that all he has said could be totally substantiated by fact. I hope that the noble Baroness will be able to give an answer regarding the Woolwich Barrage and the 12 Roman coffins which were destroyed by some nasty Government body, because the implications are slightly frightening. My personal experience of the Department of the Environment leads me to believe that this can hardly be true. I prefer to think that many of these worries are old wives' tales. I believe that the noble Viscount, Lord Hanworth, is far too responsible a person for that, as is my noble friend Lord Avebury. He is not my noble friend politically, but he is my noble friend otherwise. Both noble Lords feel great concern over this matter, as do I.

The Crown has a responsibility and, so far as I can see, it has tried to be whiter than white. It is important that this should always be seen to be the case. Whether it is an agent of the Crown who is not letting the Crown know—as I suspect may be the case—is another matter. However, the Crown must be seen to be whiter than white. What follows from that argument, if it be true, is that the Crown must control those contractors who do not live up to the desired for standards.

7.11 p.m.

Baroness STEDMAN

My Lords, Government Departments are in no way bound by the existing Ancient Monuments legislation, but they have none the less co-operated fully in all the matters affecting its implementation. This Bill provides that the Crown shall be statutorily bound in certain limited respects, but otherwise it follows the traditional principles of Crown exemption.

The first Amendment would require Crown bodies to seek the consent of the Secretary of State in respect of works affecting a scheduled monument on Crown land. This would produce a curious result, in that in many cases the Secretary of State for the Environment, wearing his Property Services Agency hat, would have to seek statutory consent from himself, with his ancient monuments hat on. Under the second Amendment, the Crown would have to serve an operations notice on the local authority and submit to the decision of the investigating authority as to the extent and the nature of the investigation to be undertaken. This would be a breach with tradition and, in our view, an undesirable one, since the Crown needs the right to refuse access to its sites in those very exceptional cases where security or other arguments of overriding national importance so demand.

The Government Departments and the other Crown land holding bodies have been consulted about the provisions of the Bill. They have all agreed to continue to abide by the spirit of the legislation except where there are overriding considerations in the public interest, in which case they assure us that they would normally be ready to state their reasons publicly. The tried and tested administrative arrangements which exist in other areas of legislation, notably in development control, show the advantages of this non-statutory co-operation.

In the past, the Crown has been totally exempt from ancient monuments legislation. The existing arrangements are based on mutual consultation, often based on an elaborate, agreed code of practice, as in the case of motorway and trunk road construction. They provide a desirable means of flexibility and they often result in greater rather than lesser benefit to the archaeological interests.

These Amendments raise important constitutional questions. They break with the precedent of Crown exemption from statutory development control. It is not normal in legislation to allow other bodies access to Crown land as of right. However, in accordance with well tried and tested principles of good administration, parallel non-statutory consultation procedures will ensure that, subject to security and matters of national importance, the Crown would expect to be able to offer the same facilities for inspection and investigation as will be required of the non-Crown developers. In the wider sphere of planning control, the administrative arrangements which apply between Government Departments are well-understood and well-established, so I can see no positive benefit in insisting upon adopting strictly formal arrangements between Government Departments.

The noble Lord, Lord Avebury, asked what is meant by Government Departments and other Crown bodies abiding by the spirit of the legislation, and referred in particular to the dangers for archaeology inherent in the operations of the Department of Transport, the Property Services Agency and the Forestry Commission. I am happy to have this opportunity to assure the House that all these bodies, and others, maintain good and often detailed working relations with the Department of the Environment and with its Ancient Monuments Directorate.

The Department of Transport carries out its operations according to what is known as the Highways Manual, which is also used by road construction units, who are the people on the ground. Volume 2, chapter 5, of that manual deals with the arrangements for rescue archaeology, for excavation in advance of road building schemes, for archaeological study while road building is in progress, and other related matters. The Ancient Monuments Directorate are sent copies of the draft road schemes so that all concerned may be made aware as soon as is practicable of the archaeological potential of the area affected.

The manual also stresses that the Department of Transport and the road construction units must immediately inform the Ancient Monuments Directorate if any archaeological finds are made. These arrangements have worked well and in many instances have led to greater benefits than might have been obtained from private developers under existing legislation. In the case of the Milton Keynes bypass, for example, the road building contract contains specific and detailed provision for archaeology, and there have been similar arrangements in relation to the M.3. During the construction of the A.1 Welwyn bypass, a Roman bath house was discovered, and this has been preserved. The road bridges it, and the public have access to the bath house.

The Property Services Agency, as one of the biggest developers in the country, is well aware of the Department's responsibility for ancient monuments, and there are internal instructions which ensure a good working relationship between the developer, the Property Services Agency, the archaeologist and the Ancient Monuments Directors. Indeed, the Property Services Agency has now set up its own conservation unit, and very shortly an internal circular will be issued on its function as a focal point co-ordinating conservation and preservation matters, where appropriate, within the Property Services Agency.

In so far as the Forestry Commission is concerned, my understanding is that their attitude towards scheduled ancient monuments on their land and on land upon which they are asked to advise has been both helpful and understanding. Indeed, their co-operation is greatly appreciated by my Department's Ancient Monuments Directorate and we commend their approach as a model to others. The Commission and its area offices consult the Ancient Monuments Directorate regularly for advice, and there has been no conflict either when a monument on Forestry Commission land has been scheduled or when the Commission has been advised not to plant its trees too near to a particular monument, to avoid causing root damage. These, and other Crown land owning bodies, were all consulted during the drafting of this Bill, and all of them have given a specific assurance that they will abide by the spirit of the new legislation.

If and when this Bill is enacted, the existing arrangements to which I have referred, and others in respect of similar bodies, will be overhauled to see how they should be updated in the light of the new and the wider provisions of this Bill. So we are not just sitting back and letting this Bill do the work. We are looking at how we can improve codes of practice and how we can improve co-operation. I regret that I have no detailed knowledge of the cases which the noble Lord, Lord Avebury, raised tonight; namely, Clun, the Thames Barrage and the Chester ring road. All 1 can say is that the Thames Barrage is not, of course, a Crown development. However, I shall look into the matter, and if I can let the noble Lord have any further information about these three cases I will write to him.


My Lords, before the noble Baroness sits down may I ask her why the Highways Manual should be a public document available to anyone, as I understand her, who can obtain access to it in the public library, whereas in the case of the Property Services Agency, which the noble Baroness herself described as "a very substantial development" the circular containing the instructions to staff on how they should act in these circumstances is an internal one and presumably not available to members of the public? Is this not inconsistent and would it be possible for the noble Baroness to consider publishing the internal circular?

Baroness STEDMAN

My Lords, it certainly might be inconsistent on the face of it, and I am prepared to look at it to see whether it is possible for us to publish that as well.


My Lords, I think that in her statement the noble Baroness was reassuring on this point, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 and 14 not moved.]

Clause 54 [Treatment and preservation of finds]:

7.22 p.m.

Baroness STEDMAN moved Amendment No. 15:

Page 49, line 34, at end insert— ("(3) Nothing in this section shall affect any right of the Crown in relation to treasure trove.").

The noble Baroness said: My Lords, Clause 54 empowers the temporary removal of finds. It is possible that the Crown's ownership of treasure trove might be thought to be affected by the right of temporary custody conferred by clause 54. This is not intended and we hope that this Amendment will make the position clear. I beg to move.

[Amendment No.16 not moved.]

Schedule I [Control of works affecting scheduled monuments]:

Baroness STEDMAN moved Amendment No. 17: Page 61, line 19, leave out from ("State") to ("shall") in line 20.

The noble Baroness said: My Lords, with the leave of the House I will speak to Amendments Nos. 17 and 18 together. The omission of these words will strengthen the position of the applicant or (as the case may be) the objector and, in the latter instance, the Amendment will bring the relevant sub-paragraph into line with the procedure in Schedule 1 to the Acquisition of Land (Authorisation Procedure) Act 1946. The effect will be to place the onus on the Secretary of State to order a public local inquiry or to afford opportunity of hearing and remove any necessity for the individual concerned to require the Secretary of State to act. I beg to move.

Baroness STEDMAN moved Amendment No. 18: Page 63, line 2, leave out from ("State") to ("shall") in line 3.