Cumbria Bill [H.L.] (Hansard, 11 March 1981)

Lord Inglewood
My Lords, I beg to move that this Bill be now read a second time. This Bill is one of a familiar series in the review of local government legislation required under Section 262 of the Local Government Act 1972. A number of these Bills have already been before your Lordships' House. This Bill substantially re-enacts existing powers and where appropriate includes common clauses. As can be expected, some clauses deal with matters of special interest to the county and it is inevitable that some petitions, in this case four, have been laid, but I submit that they will properly be dealt with in the Committee stage if not settled before, and it is the promoters' hope that some, if not all, will be settled before.
The clause with which I am concerned in particular is described as the "Protection of sites of archaeological interest"—that is, Clause 40. I believe that one noble Lord wishes to speak about this clause and hence my presuming to speak to your Lordships this afternoon. I should like to clear up in advance what may be a misunderstanding arising from confusing this clause with the provision in a recent Kent Bill—Clause 100 in that Bill as originally drafted—entitled "Control of metal detectors". That clause was much wider in its scope than the clause in the Cumbria Bill and far more exacting. What we are concerned with is the protection of sites of archaeological interest which are not otherwise protected, and we are not aiming particularly at the damage done by those who operate metal detectors, but at damage, whatever the cause may be.
The by-law making power under Clause 40 of the Cumbria Bill is sought by the local planning authority and would not extend to all and every open space in the county, as the Kent clause did, but to a few sites identified as of archaeological importance which, in fact, would also be set out in a resolution of the county council. Such sites are not covered or protected by the Ancient Monuments and Archaeological Areas Act 1979. As I have said, this is not aimed at the users of metal detectors—which is a hobby and a recreation, I 283 believe, now growing in the country—it is not aimed at metal detectors as such, but at the damage which they or others may do in disturbing archaeological sites by any means.
Cumbria is in one way in a special position. Its population is not dense; its development over the years has not been as great as in some other counties; it is thinly populated and hence there are more undisturbed sites—Roman and pre-Roman—than in many other parts of England. I submit that the damage once done to sites of this sort cannot be easily repaired. I would submit that Cumbria is neither asking for powers which are found in existing legislation nor asking for powers in a local Bill which are more appropriately included in public general legislation. This is a wholly reasonable clause in a wholly reasonable Bill. My Lords, I beg to move that the Bill be read a second time.

§ Lord Peart
My Lords, I should like to thank the noble Lord, Lord Inglewood, for introducing this Bill. I shall not elaborate on what he has said. He has said everything and no doubt other noble Lords may join in accepting the Bill. It is important for Cumberland and I hope that the House will allow the Bill to go through.

§ Lord Nugent of Guildford
My Lords, I rise to call attention to Clause 40 of the Bill to which my noble friend has referred, which would give local authorities in Cumbria new powers to make by-laws for restricting or prohibiting digging and other works in areas identified by them as being of archaeological interest. Cumbria is no different from other parts of the country in that respect. I understand that, in fact, the county council only intends to specify some 24 sites out of a potential of some 5,500 in the county listed as of archaeological interest. Clause 41 of the Bill has a wider impact, but is designed for the same purpose.
My reasons for intervening on the Second Reading of this Private Bill are twofold. First, to remind your Lordships that in the last Session the Select Committee, of which I was chairman, disallowed a clause with a similar purpose in the County of Kent Bill. Our Select Committee reached that decision in the light of the Home Office evidence that the Home Secretary would confirm by-laws by a local authority under Sections 235 and 236 of the Local Government Act 1972 imposing reasonable restrictions on the use of metal detectors. Despite my noble friend's eloquent plea on the matter I would say that there is a similarity in principle.
My second reason is that it is generally undesirable to proceed by a series of Private Bill powers to deal with a national problem, in this case particularly the use of metal detectors. In this case, in addition to the Home Secretary's powers, to which I have just referred, there are also the new powers under Section 42 of the Ancient Monuments and Archaeological Areas Act 1979 which expressly protect scheduled monuments and other areas of archaeological importance by making it an offence to use a metal detector in any such place, as well as other older national legislation touching on the matter. In those circumstances, I suggest that the 284 Select Committee to whom this Bill will be referred—if that is the wish of this noble House—should seriously consider whether Cumbria needs the powers asked for in the Bill over and above the powers already existing in national legislation.

§ Lord Skelmersdale
My Lords, we are very grateful to my noble friend Lord Inglewood for introducing this Bill this afternoon. We have of course a great deal of business in front of us today, but I think that it might assist the House if I were to intervene very briefly at this stage to give the Government's view on the provisions in the Bill concerning the control of metal detectors.
The Government's view on this matter remains substantially the same as when a clause in the County of Kent Bill providing for a licensing system for metal detectors was considered by a Select Committee of your Lordships' House, so ably chaired by my noble friend Lord Nugent of Guildford, and subsequently disallowed. We considered then, and we consider now, that powers are already available under the general law for local authorities to make suitable by-laws to control the use of metal detectors in respect of certain areas of land. The Government are concerned that the system of by-laws proposed in Clause 40 of the Cumbria Bill should not overlap these existing powers.
Until last year my right honourable friend the Secretary of State for the Home Department was not prepared to confirm by-laws which sought to prohibit the use of metal detectors made under the enactments protecting public open spaces. He took the view that the mere use of a metal detector did not constitute a nuisance or damage the land, and, therefore, fell outside the scope of the by-law-making powers in question. It was only the digging that created the nuisance. However, local authorities and archaeological organisations argued very strongly that a by-law prohibiting digging is much harder to enforce than one prohibiting the operation of a metal detector because digging can be carried out quickly and metal detector users invariably dig up what they have located. Therefore, there was a case for prohibiting the actual use of metal detectors.
It was also considered that by-laws prohibiting their use on certain land would be infra vires. My right honourable friend the Secretary of State is, therefore, now prepared to consider by-laws prohibiting or regulating the use of metal detectors where the need to protect particular and usually quite small areas of land can be established; for instance, where an archaeological site or landscape garden needs this protection. I understand that four local authorities have submitted draft by-laws in accordance with the new policy and that these are now under consideration.
As to the Bill in general, there are no other points that I would wish to raise at this stage. I recommend that your Lordships give the Bill its Second Reading today to enable it to be considered in detail in Committee, as is customary.