National Heritage Bill [H.L.]

HL Deb 21 December 1982 vol 437 cc1000-42

House again in Committee on Schedule 4.

[Amendments Nos. 104L, 104M, 104NA, 104PA, 104Q, 104R, and 104S not moved.]

The Earl of Avon moved Amendment No. 105:

Page 45, line 12, at end insert— ("20A.—(1) Section 10B of the 1972 Act (grants for repair of buildings in town schemes) shall be amended as follows.

(2) At the beginning of subsection (1) there shall be inserted "Subject to subsection (1A) below".

(3) After subsection (1) there shall be inserted— (1A) Subsection (1) above does not apply in relation to a building situated in England, but the Commission may make grants for the purpose of defraying in whole or in part any expenditure incurred or to be incurred in the repair of a building which is so situated and which—

1. (a) is comprised in a town scheme; and
2. (b) appears to the Commission to be of architectural or historic interest.".

(4) For subsection (3) there shall be substituted—

"(3) In subsection (2) above— town scheme list" means a list, containing buildings which are to be the subject of a repair grant agreement and compiled (in the case of buildings situated in England) by the Commission and one or more English local authorities or (in the case of buildings situated in Wales) by the Secretary of State and one or more Welsh local authorities after consultation with the Historic Buildings Council for Wales; town scheme map" means a map, showing buildings which are to be the subject of such an agreement and prepared (in the case of buildings situated in England) by the Commission and one or more English local authorities or (in the case of buildings situated in Wales) by the Secretary of State and one or more Welsh local authorities after such consultation.

(5) In subsection (4) after "the Secretary of State" (in both places) there shall be inserted "(or, as the case may be, the Commission)".

(6) In subsection (5) after "the Secretary of State" there shall be inserted "or (as the case may be) the Commission" and after "he" there shall be inserted "(or they)".

(7) In subsection (6) for "the appropriate advisory Council" there shall be substituted "the Historic Buildings Council for Wales".

(8) In subsection (8) after "Secretary of State" there shall be inserted "or the Commission".

(9) In subsection (9) after "Secretary of State" there shall be inserted "(or the Commission)".

(10) In subsection (10) after "Secretary of State" (in the first place) there shall be inserted "or the Commission" and after "Secretary of State" (in the second place) there shall be inserted "or (as the case may be) the Commission".

(11) In subsection (11) the definition of "the appropriate advisory Council" shall be omitted.

(12) At the end there shall be inserted— (12) In this section "the Commission" means the Commission for Ancient Monuments and Historic Buildings for England.

(13) Nothing in this paragraph affects a grant made before the appointed day.").

The noble Earl said: This amendment will confer on the commission the power to make grants for the repair of buildings in town schemes in England. When a town scheme is drawn up, the Secretary of State and the local authority or authorities agree to set aside a sum of money each year for a specified number of years, for grant-aiding repairs to the buildings in the scheme. A specific area of the town is agreed for action, and the money is thus committed to grants for buildings in this one area. It is appropriate that the commission should take over from the Secretary of State the power to make these grants in England. It has always been the intention, as was made clear in The Way Forward, that the commission should assume responsibility for making grants. This amendment will complete the provisions in the Bill for transfer of existing grant powers to them. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 105A and 105B not moved.]

The Earl of Avon moved Amendment No. 105C:

Page 47, line 39, at end insert— ("26A. At the end of section 6(5) of the 1979 Act (power of entry to preserve monument from damage) there shall be inserted—

"This subsection does not apply to land in England."

26B. After section 6 of the 1979 Act there shall be inserted—

"Commission's powers of entry in relation to sheduled monuments.

>6A.—(1) Any person duly authorised in writing by the Commission may at any reasonable time enter any land in England for the purpose of inspecting any scheduled monument in, on or under the land with a view to ascertaining whether any works affecting the monument are being carried out in contravention of section 2(1) of this Act and so to enabling the Commision to decide whether to institute proceedings in England for an offence under sectiion 2(1).

(2) Any person duly authorised in writing by the Commission may at any reasonable time enter any land in England for the purpose of—

1. (a) observing the execution on the land of any works to which a scheduled monument consent relates: and
1002
2. (b) inspecting the condition of the land and the scheduled monument in question after the completion of any such works,

with a view to ascertaining whether the works in question are or have been executed in accordance with the terms of the consent and of any conditions attached to the consent, and so to enabling the Commission to decide whether to institute proceedings in England for an offence under section 2(1) or (6) of this Act.

(3) Any person duly authorised in writing by the Commission may at any reasonable time enter any land in England for the purpose of inspecting any scheduled monument in, on or under the land in connection with any consultation made in respect of the monument under section 4(3) of this Act or paragraph 3(3)(c) of Schedule 1 to this Act.

(4) Any person duly authorised in writing by the Commission may enter any land which is in England and in, on or under which a scheduled monument is situated, with the consent of the owner and (if the owner is not the occupier) of the occupier of the land, for the purpose of erecting and maintaining on or near the site of the monument such notice boards and marker posts as appear to the Commission to be desirable with a view to preserving the monument from accidental or deliberate damage.

(5) References in this section to scheduled monument consent include references to consent granted by order under section 3 of this Act.".")

The noble Earl said: This amendment will give the commission certain powers of entry on to land where a scheduled monument is situated, to enable them to investigate possible contraventions of the scheduled monument consent procedure, and, where necessary, institute proceedings. They will also have powers of entry for other purposes and will take over from the Secretary of State the power to enter land in England to put up notice boards or marker posts to help protect a scheduled monument situated there.

The Secretary of State has various other powers of entry. It is right that he should for the most part retain his existing powers of entry. The exception to this is the power given for the purpose of erecting such notice boards and marker posts as seem necessary. This power can be exercised only with the consent of the owner and occupier of the land and is just the sort of task that the commission, as the experts, should have transferred to them. I beg to move.

Baroness Birk

I am delighted that the commission is to be trusted and that it may authorise its own inspectors to look at other people's monuments in England, but does the Secretary of State really need to retain the power to authorise inspectors to look at them, too? Can he not leave that to the commission? Who is going to advise the Secretary of State on those buildings? Surely it will be the commission. This will result in duplication of staff, which is quite unnecessary. This seems to be another odd thing which has crept into the Bill, whereby the Secretary of State retains unnecessary concurrent powers, because the commission could take over.

I do not know whether the noble Earl could say a little more about this matter. Although we welcome the amendment, would the noble Earl consider leaving it to the commission to make its own decisions?

The Earl of Avon

I take the points made by the noble Baroness, and I shall certainly look into the matter. In this particular case I do not think that it has that effect. Besides taking over this power, the commission will have powers of entry to inspect monuments to see if works are beng carried out without consent, or if there is failure to comply with the terms or conditions of a grant. This is similar to the Secretary of State's powers, but the commission needs to be granted this power to enable it to decide whether to institute proceedings if an offence is being committed. It will also be able to observe the execution of works which are covered by consent, and to inspect the condition of the land and monuments afterwards to check whether the works have been carried out in accordance with the terms. This does not sound to me like duplication, but I shall certainly look into the noble Baroness's point.

Lord Jenkins of Putney

I have listened with interest to the debate on a number of amendments. It appears to me that what is happening is that the Secretary of State is rather in the position of a stand-up comedian who has decided that his act is getting a bit tired and frayed and that the best thing he can do is to go in for a ventriloquial act. He has created the dummy, which is the commission, and is undecided to what extent his dummy is to be allowed to have a real life of its own. In some circumstances he is uncertain to what extent the quango which he has created (against the Government's stated disbelief in quangos, but none the less they create them) should be allowed to spring to life. Every now and then the Secretary of State says that the dummy must speak with his voice and with his voice only.

In this particular case it seems to me that the Minister is once again uncertain as to whether the voice is to be his own or whether the dummy is to have freedom to speak. In the case of this amendment, it seems to me that the uncertainty remains. Perhaps I have not followed the argument closely enough, but I am not clear as to whether in this instance the commission is on its own or whether the Secretary of State is retaining the reserve power in his own hands.

The Earl of Avon

As I understand it, the Secretary of State needs to reserve the power because there are some third parties involved in this case. The Secretary of State needs to keep his current powers because he is responsible for deciding scheduled monument consent applications. In those circumstances, it would be wrong to transfer these powers. I always hesitate to involve myself in quango arguments, but we hope that we are setting up one in the place of two. That does not altogether not follow our policy.

On Question, amendment agreed to.

8.14 p.m.

The Earl of Avon moved Amendment No. 106:

Page 50, line 10, at end insert— ("34A.—(1) Section 15 of the 1979 Act (acquisition and guardianship of land in vicinity of ancient monument) shall be amended as follows.

(2) In subsection (1) after "Secretary of State" there shall be inserted "or the Commission" and at the end of that subsection there shall be inserted— Land may be acquired, or taken into guardianship, by the' Commission by virtue of this section only if the land is situated in England.

(3) In subsections (3) and (4) after "Secretary of State" there shall be inserted "and the Commission".

(4) In subsection (6) after "Secretary of State" there shall be inserted "or the Commission".

34B.—Section 16 of the 1979 Act (acquisition of easements etc. over land in vicinity of ancient monument) shall be amended as follows.

(2) At the end of subsection (1) there shall be inserted— Where the land in question is situated in England, the Secretary of State shall consult with the Commission before entering into the agreement or making the compulsory purchase order (as the case may be).

(3) After subsection (1) there shall be inserted— (1A) The Commission may by agreement acquire over land which is situated in England, and which adjoins or is in the vicinity of any monument under their ownership by virtue of this Act, any such easement as the Secretary of State may acquire by virtue of subsection (1) above.

(4) In subsection (3) after "(1)" there shall be inserted "or (1A)".

(5) In subsection (4) after "Secretary of State" there shall be inserted "or the Commission".").

The noble Earl said: This amendment will enable the commission to acquire land, or guardianship or rights over land, adjoining or near an ancient monument under its ownership or guardianship where this land or right is needed for the proper management of, or access to, the monument. The commission's powers of acquisition and power to take monuments into guardianship, covered in paragraphs 31 and 32 of Schedule 4, are extended by the first of these two new paragraphs to include any land adjoining or in the vicinity of an ancient monument which appears to it to be reasonably necessary for the management or maintenance of the monument, for access to it, or for providing facilities and services to visitors. It may acquire the land at the same time as the monument, or later, and it will have full control of management over it and may enter it at any reasonable time to exercise these powers. I recommend this amendment to the Committee, and beg to move.

Baroness Birk

Again we find ourselves in the same position. Am I right in saying that the Secretary of State is to retain concurrent powers to acquire and take into guardianship monuments and land in their vicinity in England? There are no Notes on Clauses to help on this particular point, and Section 15 of the 1979 Act, which is being amended, I cannot find in this guide to Schedule 4.1 should have thought that it would be enough for the commission and the local authority to have concurrent powers as to guardianship. Would not the Minister agree with that?

As to the new paragraph 34B, it seems to me that there are to be yet more concurrent powers regarding the acquisition of easements, et cetera, over land in the vicinity of ancient monuments. Should not the Secretary of State divest himself of the powers in England, as the commission is to have them, anyway? When so many concurrent powers are to be left with the Secretary of State, this is almost to make a laughing stock of the commission. It is not going to help anybody.

In answer to an earlier amendment the Minister said we have to remember that a new quango is to take the place of two bodies and is to act as one. But that seems to be offset by giving as many powers, or even more powers, to the Secretary of State. I thought the idea was that all this should be given to an independent commission, but it does not seem to be working out that way.

The Earl of Avon

I believe that the noble Baroness is laying stress in the wrong place. Under the second of the two new paragraphs the commission may acquire by agreement such easements or other rights as appear to it to be necessary for managing, maintaining or gaining access to any monument under its ownership or guardianship. These may be existing or new easements. The amendment does not give the commission power to acquire easements or other rights compulsorily. This is a right which remains the prerogative of the Secretary of State although, as with any proposed acquisition by him, he is required by the amendment to consult his experts in the commission.

Paragraph 34A extends the commission's power to acquire or take into guardianship any ancient monument, and to include any land situated in England in the vicinity of an ancient monument. Subparagraph (2) provides that the references in Sections 10 to 12 of the 1979 Act to an ancient monument shall include land adjoining or in the vicinity of a monument which appears to the commission, the Secretary of State or a local authority, as appropriate, to be reasonably required for various purposes. These purposes include the maintenance of a monument or its amenities, providing or facilitating access, the exercise of proper control, the storage of equipment, et cetera. Sections 10 to 12 cover compulsory acquisition.

Sub-paragraph (3) provides that, like the Secretary of State and any local authority, the commission shall have full control and management of any land acquired by them or taken into their guardianship in this way. Sub-paragraph (4) provides that references in the 1979 Act to the land associated with a monument under the ownership or guardianship of the commission are references to land acquired or taken into guardianship under Section 15.

Paragraph 34B empowers the commission, under Section 16 of the 1979 Act, to acquire by agreement easements and other rights over land in the vicinity. I am sorry that this was not included in the Notes on Clauses, and I will ensure that it is sent to the noble Baroness.

Baroness Birk

I will just have to let this amendment go for the time being but, quite frankly, these matters are of considerable complexity—particularly as they are situated where they are, in Schedule 4—and if the noble Earl will let me have the Notes on Clauses and an up-to-date refresher on the guide to Schedule 4, I can look at these and consider what to do before Report stage.

Lord Kennet

Is this not precisely the sort of place where the insecurity of the schedule comes out? I understood from what the noble Earl read out from the Notes on Clauses—for the first time, with colossal effort—that under this provision there will be three parties; the local authority, the commission, and the Secretary of State or their representatives. It seems that they will be charging around in a given piece of countryside near an ancient monument saying to each other, "Does it appear to you to be reasonable that this bit should come into our ownership because it does not appear to me to be reasonable that it should? Does it appear more reasonable to you that it should come into your ownership than it appears reasonable to me that it should come into your ownership; or reasonable to him that it should come into your ownership, or into my ownership?" And so on, and so forth, with nine permutations. This, because it is clear, is absurd. If its clarity had been apparent earlier, I believe that the schedule would not have been drafted as it has. Is not the mere reading out of that clarification sufficient justification for the case I was making earlier for a short, clear and positive statement of the legal powers and duties of the commission somewhere in the Bill?

The Earl of Avon

As the noble Lord, Lord Kennet, will be aware, the whole problem with Schedule 4 is the amending of present legislation and not the forming of new legislation. That is a problem and it is a very difficult one to get over. I was rather hoping that when the noble Lord heard about the "vicinity" of ancient monuments, and knowing his predilection for Beverley, he might have come back and said that he liked the idea of "vicinity" in this particular case. However, I take the noble Lord's point and hope that what I have said has clarified the matter. Had I realised that there was not a note on the clause, I should have read out the full amendment earlier.

On Question, amendment agreed to.

8.23 p.m.

The Earl of Avon moved Amendment No. 107:

Page 50, line 25, at end insert— ("(3) In subsection (2) after "Secretary of State" there shall be inserted "or the Commision".").

The noble Earl said: This amendment enables limited owners of land to grant certain rights over land to the commission. Section 18 of the 1979 Act enables landowners whose capacity is limited to do certain things which they would be otherwise precluded from doing. This amendment would enable such an owner to grant an easement, servitude or other right over land which the commission is authorised to acquire under Section 16 of the 1979 Act. Section 16 is concerned with the requisition of easements and similar rights. I beg to move.

Baroness Birk

So far as I can make out, although this is very difficult territory which I find very hard going at the moment, the amendment seems to stop the commission from making regulations. It also forces the Secretary of State to consult the commission before he makes the regulations. Incidentally, as the noble Earl must know, local authorities can make regulations without consulting anybody. Are we now in an area of piffling detail? Why does the Secretary of State not give the power for making regulations to the commission in respect of monuments in England and again save duplication of staff? Is it really so fundamental that this respectable, high-grade new body should not be given powers of direction? Again we seem to be doubling up. These matters all seem to run together, but we are dealing with them on a piecemeal basis. Talk about a belt-and-braces job; this is the whole lot with safety pins!

The Earl of Avon

I believe that the noble Baroness is seeing things which do not exist. This amendment enables limited owners of land to grant certain rights over land to the commission. It is giving things to the commission and is in no way holding the commission back.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 108: Page 50, line 30, after (" "Secretary of State" ") insert ("(in the first place)").

The noble Earl said: This amendment is designed to enable the Secretary of State to make on the commission's behalf regulations controlling certain aspects of public access to monuments under the ownership or guardianship of the commission.

Under the provisions of paragraph 37 of Schedule 4 to the Bill, the commission would be empowered to control the times of public access to its monuments and to fix admission charges and also to make regulations. Besides covering opening hours and charges, these could prohibit or regulate any act or thing which might damage the monument or disturb people's enjoyment of it, and could do anything else which the commission thought necessary for the preservation of the monument or its amenities or any other property of theirs. This would give them a wide-ranging power to regulate public access, activity and behaviour. This is not normal for a non-Crown statutory body and, after deliberation, we have concluded that it would not be right for the commission, a non-elected body, to have the power to create offences. Hence this amendment, which will give the Secretary of State the power to make regulations on the commission's behalf, but which requires him to consult them. Obviously the commission will be the experts on regulations necessary for the proper management of the monuments, and their views must be given full weight: nevertheless it is right that the Secretary of State should take the final decision. I beg to move.

Lord Jenkins of Putney

I hope that I am not being obtuse but I cannot see how the insertion of the words, "in the first place", shown in the Marshalled List, achieves all the beneficial effects which the noble Earl has described. Is it really the case that this minor-sounding amendment removing these powers from the commission and placing them in the hands of the Secretary of State—or to use the analogy I employed earlier, removing the powers from the hands of the dummy and placing them in those of the ventriloquist—has these consequences?

The Earl of Avon

Yes—shall I go through it? Paragraph 37 of Schedule 4 amends Section 19 of the 1979 Act, which deals with public access to monuments in public control. Sub-paragraph (4) provides that regulations made by the Secretary of State or a local authority to regulate public access to any or all of the monuments under their ownership or guardianship (or in the Secretary of State's case to monuments under his control or management for any other reason) may only be made under subsection (3) rather than under the section generally. The intention is to define more closely in this section which regulation-making power applies to which group of monuments, since the powers relating to the Secretary of State's own monuments are different from those introduced by sub-paragraph (5A) relating to the commission's monuments. Sub-paragraph (5) is a consequential amendment to Section 19(4), and thus provides that the particular powers conferred by subsection (4) relate only to regulations made under Section 19(3).

I have a slight suspicion that I am happily speaking ahead, to Amendment No. 109, and that, of course, the noble Lord, Lord Jenkins of Putney, is perfectly right when he asks why Amendment No. 108 should have all that effect. May I therefore now speak to Amendment No. 108? This is a small drafting amendment to correct paragraph 37 of Schedule 4 to the Bill. I hope that, to some extent, I may take Amendment No. 109 as read.

Lord Jenkins of Putney

I am grateful to the noble Earl for clarifying that he was speaking to another amendment. As I myself did the same thing on one occasion, I understand how easily it can be done.

Baroness Birk

While we are in a confessional mood, I now realise that when speaking to Amendment No. 107, when I was quite happy, I was in fact talking about Amendment No. 109. I will not say it all again but this was the amendment which stopped the commission from making regulations and forcing the Secretary of State to consult the commission before making them. This is a whole series of amendments which are very confusing—and this again makes the point about the amount of confusion there is over these amendments. Anyway, I apologise.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 109:

Page 50, line 32, leave out sub-paragraphs (4) and (5) and insert— (" "(4) In subsection (3) for "this section" there shall be substituted "this subsection".

(5) In subsection (4) for "this section" there shall be substituted "that subsection".

(5A) After subsection (4) there shall be inserted— (4A) The Secretary of State may by regulations under this subsection make such provision as appears to him necessary for prohibiting or regulating any act or thing which would tend to injure or disfigure any monument under the ownership or guardianship of the Commission by virtue of this Act or the monument's amenities or to disturb the public in their enjoyment of it. (4B) The Secretary of State shall consult with the Commission before he makes any regulations under subsection (4A) above." ")

The noble Earl said: I have already spoken to this amendment at some length. I beg to move.

Baroness Birk

The Minister has already spoken to it and I have already objected to it, two amendments back, so I will leave it there.

On Question, amendment agreed to.

Baroness Birk moved Amendment No. 109A:

Page 51, line 5, at end insert— ("After section 20 of the 1979 Act insert—

"Guardianship of monuments in the ownership of the Secretary of State

Commission to be consitututed as guardian of monuments.

20A. The Secretary of State shall constitute the Commission guardian of all monuments in his ownership.".")

The noble Baroness said: This is a probing amendment and it can be taken together with No. 110A. It is not yet at all clear to what extent the Secretary of State intends to make the commission guardian of the monuments which he owns and now cares for, or with respect to which he is now the guardian, they being in other people's ownership. If he holds on to guardianship or continues to care for the monuments he owns he will have to duplicate the commission's activities in this field. I think we all agree duplication is confusing and wasteful. If the commission is to be a success it must be given the job in whole, not just in part. If there is not to be overlap and confusion the same is true, transfer all, not just a part. I would like to ask the Minister what is intended here. I beg to move.

The Earl of Avon

I am grateful to the noble Baroness for her introduction and I too shall also address my remarks to Amendment No. 110A. These two amendments seek to make the commission guardian of all monuments currently in either the Secretary of State's ownership or his guardianship. We have taken a different approach. For the commission to be constituted guardian of monuments in the Secretary of State's ownership would mean that he had lost any real control over that monument. It would not be right that the Secretary of State should do so in respect of Crown Land. There are alternative methods of ensuring that the commission is made responsible for managing these monuments, such as that we are describing in Amendment No. 111. The Government will be bringing forward a suitable amendment at a later stage to cover owned monuments.

The transfer to the commission of all monuments in the Secretary of State's guardianship also raises difficult questions. The Bill as drafted provides, in paragraph 39 of Schedule 4, for the transfer of guardianship monuments between the Secretary of State and the commission by consent. In the Government's view this is the right approach. It would not make sense for there to be a wholesale renegotiation of all guardianship agreements. This could be a massive and time-consuming task and one which could prevent the commission from applying its efforts towards the real task of preserving the heritage. If owners of monuments wish to transfer guardianship, then I have no doubt that the Government and the commission would be very happy to consider it. We think a blanket transfer would be wrong. This is a complicated area. I hope my explanation will to some extent have answered the noble Baroness.

Lord Kennet

What are the Government's plans for the Tower of London?

The Earl of Avon

I think this is coming up in another amendment, so perhaps we can leave it until we reach that amendment.

Baroness Birk

This is again fairly complicated and it is difficult to take it all in from just hearing it. I shall have to leave it there for the moment and read what the Minister has said. I will also see how the amendment looks when he produces the new amendment. I gathered that he agrees that there is some sorting out to be done, that there are two specific problems and they have been joined together at the moment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 110: Page 51, line 15, after (" "Secretary of State" ") insert ("(in the first place) ").

The noble Earl said: This is a minor drafting amendment to paragraph 39 of the schedule to correct an error in the drafting. The amendment which is being amended relates to Section 21(1) of the 1979 Act. There are two references to the Secretary of State and this is only intended to refer to the first. I beg to move.

On Question, amendment agreed to.

[Amendment No. 110A not moved.]

Baroness Birk moved Amendment No. 110B:

Page 51, line 23, at end insert ("and at the end of the subsection there shall be inserted— Subject to those persons being known and consenting or if unknown or known but of unsound mind with the consent of the Court.".").

The noble Baroness said: This amendment is designed to clear an impasse, or at the very least to draw attention to it. I understood that problems have arisen with Section 21 of the 1979 Act. That is the one under which guardianship may be transferred, for example, from the Secretary of State to the commission, where it has simply not been possible to find out who should be consulted and who must agree before guardianship is transferred. The reference to the court consenting on behalf of the "unknown or known but of unsound mind" is intended to be no more than a trigger to thinking, so that if some such provision is needed it can go into the Bill; it enables one to build on something.

If the Secretary of State were compelled to transfer guardianship of a monument in someone else's ownership, as Amendment 110A says, then it would be essential to have a way of clearing that particular impasse, wherever reasonable, with due protection for individuals. I beg to move.

The Earl of Avon

When the Secretary of State or the commission or a local authority want to transfer the guardianship of a property between themselves, it is, of course, right that the people most concerned should have to give their consent. That is what is already provided; the people immediately affected by the operation of the guardianship deed would have to consent.

I can indeed see the reason behind the noble Baroness's amendment, that where the body concerned has made every effort to find the people involved but has failed, or where they are perhaps of unsound mind and cannot really give consent, some way round might be appropriate. But I have to say that I do not think the issues involved are sufficient to warrant this formal reference to the courts. Desirable though transfers may sometimes be, it is hard to imagine that they are ever that essential.

We should remember here we are talking about organisational transfers between different parts of the public sector. I do not believe that this is of such importance that we must give the courts an additional role in deciding cases where consent cannot be obtained in the usual way. The noble Baroness mentioned that she had some concern about Section 21 of the 1979 Act. If she has some examples which would add weight to what she has said, I would be glad to consider the problem again.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 111:

Page 52, line 4, at end insert—

("Commission to exercise certain functions of Secretary of Slate.

23B.—(1) Subject to subsection (2) below, this section applies to—

1. (a) functions exercisable by the Secretary of state by virtue of section 13 of this Act in relation to any monument situated in England;
2. (b)) functions exercisable by him by virtue of section 15(3) or (4) of this Act in relation to any land situated in England:
3. (c) functions exercisable by him by virtue of sections 19 or 20 or this Act in relation to any monument situated in England and under his guardianship by virtue of this Act.

(2) This section does not apply to a function of making regulations.

(3) If the Secretary of State directs the Commission to exercise functions to which this section applies and which are specified in the direction, in relation to any monument or land so specified, the Commission shall exercise them on his behalf in such manner as he may from time to time direct.").

The noble Earl said: This amendment provides the mechanism by which the Secretary of State will be able to direct the commission to carry out functions on his behalf at monuments in his guardianship. It will be recalled that this is an important part of the commission's role as set out in The Way Forward. Sub-sections (4) and (5) of Clause 22, in respect of the Royal Botanic Gardens, provide for the Minister to direct the board to carry out specified functions on his behalf, thus enabling the new body to carry out management tasks without affecting the ultimate responsibility for the property concerned.

This amendment inserts an analogous provision to enable the Secretary of State, without surrendering his guardianship role, to direct the commission to carry out the functions relating to guardianship on his behalf. Those functions will include maintenance and examination of monuments, control and management of related land, provision of public access, guardianship of monuments and provision of facilities, information and other services. The Secretary of State will be able to direct the commission to carry out any or all of these functions in respect of specified monuments. However, the regulation-making powers in Section 19, which we have already spoken about, will be reserved to the Secretary of State. I beg to move.

Baroness Birk

I welcome this amendment in general terms. I am sorry if this sounds churlish, but in subsection (3) the commission is again being hedged down. The Secretary of State directs the Commission to exercise functions". and so on. The Commission shall exercise them on his behalf in such manner as he may from time to time direct". Again we have this direction, in one section after the other, from the Secretary of State. Once again I ask whether it is necessary to inhibit the commission so much by the Secretary of State.

The Earl of Avon

This applies to the guardianship monuments, and as I tried to explain earlier these are the ones which the Secretary of State does not feel he can let further out of his control and ownership. For that reason he offers to the commission the right of virtually running them, but not owning them.

On Question, amendment agreed to.

8.41 p.m.

Baroness Birk moved Amendment No. 111 A: Page 53, leave out lines 7 and 8.

The noble Baroness said: This is again dealing with control by the commission. The words I propose should be omitted seem to be unnecessary. Is the commission likely to dispose of any land of significance without consultation? It just would not do so. Again, it is a question of trusting the commission and saving duplication of staff and extra work. This is all so tied in and tied down, and there is just one example after another. I beg to move.

The Earl of Avon

The noble Baroness is indeed making her point. The effect of this amendment would be to enable the commission, unlike a local authority, to dispose of land containing an ancient monument without having to consult the Secretary of State.

I can understand the desire to make the commission as independent as possible. Since it will be the expert on historical matters it is proper that the Secretary of State should consult it before disposing of an ancient monument. But disposing of such land is not just a matter of professional judgement; it could also raise sensitive local issues. Local authorities, even though directly accountable to their electors, are required by the 1979 Act to consult the Secretary of State in these circumstances. We believe that the case for the commission, an appointed body, to do so seems at least as strong.

I suggest that the words affected by the amendment form a sensible safeguard, and are not seeking to tie down the commission as perhaps in some of the other instances pointed out by the noble Baroness.

Baroness Birk

I withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 112:

Page 54, line 17, at end insert— ("(1A) At the end of subsection (3) there shall be inserted "and (c) where the site in question is situated in England, serves a copy of that notice on the Commission (unless the investigating authority is for the time being the Commission).".")

The noble Earl said: This amendment will ensure that the commission, which will be the repository of central expertise on rescue archaeology and responsible for advising the Secretary of State on the appointment of investigating authorities in archaeological areas, will be kept informed of any excavations an investigating authority may decide to undertake on a site where works are to take place. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 113:

Page 54, line 25, at end insert— ("50A. In section 39 of the 1979 Act (power of investigating authority to investigate in advance of operations notice any site which may be acquired compulsorily) after paragraph (c) of subsection (4) there shall be inserted "and (d) where the site in question is situated in England, the Commission (if the investigating authority is not the Commission);".").

The noble Earl said: This amendment will ensure that the commission will be kept fully informed of any directions given by the Secretary of State to an investigating authority regarding their investigation of a site which may be acquired compulsorily. I beg to move.

On Question, amendment agreed to.

Lord Beloff moved Amendment No. 113A: Page 55, line 14, after ("land") insert ("or building").

The noble Lord said: I move this amendment in the absence of Lord Dacre of Glanton. On this occasion it is not the British Academy but the Society of Antiquaries which has asked that this matter should be called to your Lordships' attention. As it stands, the subsection says that the commission may contribute towards the cost of an archaeological investigation on any land in England. The Society of Antiquaries points out that a great deal of modern archaeology, or that relating to the medieval and early modern periods, may relate to the interior of building rather than to a piece of land—the discovery of frescoes, fireplaces or other things hidden behind the detritus of centuries. The society is anxious that an investigation of this kind should come within the ambit of this subsection.

It also occurred to me that when one talks about land one usually thinks of an open space. Of course, a great deal of archaeology in the ordinary sense, and rescue archaeology in particular, is carried out beneath existing buildings or while one existing building is being removed and before another is built on the same site. It therefore seemed to me that there would also be additional clarity and certainty if the words "or building" were added after the word "land". I beg to move.

Baroness Birk

I support this amendment. I think it may well be that it was considered that "land" encompassed "land and buildings" in the schedule. I do not know. Nevertheless, I think it should be made absolutely clear. It is true, as the noble Lord, Lord Beloff, said, that archaeology is carried out in buildings, within the remnants of buildings or under buildings.

The Earl of Avon

I can understand my noble friend's desire to ensure that the commission can undertake or pay for archaeological investigations in buildings as well as on land. I fully take the point he made on behalf of the Society of Antiquaries. I am happy to say that this is already provided for, because the paragraph of Schedule 4 which this amends itself amends Section 45 of the Ancient Monuments and Archaeological Areas Act 1979. The definition of "land" which can be found in Section 61 of that Act specifically includes: a building or a monument". It is therefore unnecessary to put in the word "building". The noble Baroness said she thought that it would be a good idea to include it anyway. Should my noble friend feel that way, then we should think about "or a monument", too. I can assure him that the definition of "land", to which we are referring, includes both a building and a monument. Perhaps my noble friend will consider that reply.

Lord Beloff

I have no doubt that the Minister is correct, but this is just another example of what happens when reasonably intelligent people like the council of the Society of Antiquaries do not know what is meant by a proposal in a Bill because they are not accustomed to legislation by reference. I should have thought that this very simple change could be made to reassure them, whether or not, in fact, it is legally absolutely essential.

The Earl of Avon

Would my noble friend like "monument" as well?

Lord Beloff

I have not been asked about "monument", but it might as well go in too.

Lord Kennet

I feel sure that the Committee will wish to congratulate the noble Lord on a piece of textual archaeology in which he unearthed the meaning of this amendment by reference to a text, which refers to a text, which refers to a text. Only he had the resources to burrow so deep as to unearth the meaning. With those comments I should like to support both "building" and "monument" being added to "land" in this amendment.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 113B:

Page 55, line 20, at end insert— ("53A.—(1) Section 46 of the 1979 Act (compensation for certain damage) shall be amended as follows.

(2) In subsection (1) after "Secretary of State" there shall be inserted "or the Commission".

(3) In subsection (2) for the words from "Secretary of State" to the end there shall be substituted "Commission (if the area in question is situated in England) or from the Secretary of State (if it is situated elsewhere).".

(4) In subsection (3) after "6" there shall be inserted "6A".

(5) Nothing in sub-paragraph (3) affects comensation in respect of damage caused before the appointed day.").

The noble Earl said: This amendment transfers to the commission the responsibility for paying compensation for damage caused in the exercise of certain powers granted by the 1979 Act. At present compensation can be recovered under Section 46 of the 1970 Act from the Secretary of State or any other authority who causes damage to land or property while exercising one of the specified powers of entry. Under this amendment the commission are required to pay compensation for damage caused by themselves or by anyone acting on their behalf. They will also be responsible for meeting claims for compensation arising from damage caused by an investigating authority for any area of archaeological importance in England. The Secretary of State will continue to pay compensation caused by investigating authorities in Scotland and Wales. The commission will be the experts in assessing and negotiating any payments for compensation, and as such it is sensible and efficient that they should take reponsibility for such payments. I beg to move.

On Question, amendment agreed to.

On Question, Whether Schedule 4, as amended, shall be agreed to?

Lord Kennet

I wonder how many noble Lords now regret that we did not get rid of the whole thing and insist upon a positive statement before we embarked upon this textual archaeology which we have been doing. However, we did not do so. I will only remind the Committee that we should consider once again whether it would not be better to do so at the next stage, unless the Government give us the clear, positive statement of the powers and duties of the commission which has been requested on so many occasions, before we reach the next stage. I do not wish to press the deletion of this schedule.

Baroness Birk

Earlier this afternoon the noble Lord, Lord Kennet, was leading up to the deletion of Schedule 4. I then said that we would wait to hear what the Minister said when he came back on the question of consolidation. We have obviously moved away from the idea of a guide and a Keeling schedule. It is now quite clear that consolidation is the only way in which this matter will be sorted out. Since early this afternoon we have unfortunately had example after example of the complexity of the Bill and the difficulties with which even those of us who have tried to accustom ourselves to it have found in dealing with it. I thought that the recent amendment moved by the noble Lord, Lord Beloff, epitomised exactly what was happening under the Bill. We were told that that refers back to something else and that that refers to buildings and land. In the end the Minister rightly, sensibly and co-operatively—as he has been throughout the Bill—decided to accept the amendment because it made sense and those people who read it could see what it meant without going back and back and back.

That is all very well. The Society of Antiquaries had the noble Lord, Lord Beloff, and his colleagues to put forward their amendment, but as regards anyone else who has to consider it, it is important to underline once again tonight the complete dissatisfaction, confusion and anxiety that is felt throughout the Committee about the wretched Schedule 4. It will haunt us all through the recess. I repeat what I said earlier: unless the Minister can come forward with definite plans and a promise of consolidation, which should be running—as several law Lords have already said to me—at the same time as the Bill is going through, we shall have to think very seriously again as to what we shall do as regards that schedule. It was laughable at first, but now it is becoming a type of comic tragedy.

Lord Jenkins of Putney

I should like to support what my noble friend has said. This Schedule is 21 pages long. There ought to be a law against long schedules. It will present those people who have to implement these provisions when the Bill becomes an Act with insoluble problems, unless the Government are subsequently to issue a series of clarifying pamphlets and leaflets. One would have thought that the Government could save themselves a great deal of trouble in the future by clarifying the law in the first instance. I hope that the noble Earl will discuss this matter with his colleagues.

Viscount Hanworth

I should like to support what has already been said. I cannot understand why the Government have proceeded in the way in which they have. Surely this Bill is not extremely urgent. It should have been possible either to produce consolidation, as has already been said, at the same time, or to cancel those passages in the previous Bill and reproduce the amended version in Schedule 4 so that everybody knew what was going on. Bearing in mind that I do not wish to be unkind, I point out that it is apparent that the Government have not given sufficient thought to this Bill before introducing it in this House, because time and again the Minister very kindly said that he would like to have another look at various points. I think the Government are to blame for the way they have brought forward this Bill.

The Earl of Avon

I do not think there is very much that I can add to what I said earlier today on this subject. I totally appreciate what the noble Lord and the noble Baroness have said because I also have to cope with Schedule 4. I can fully understand the problems. These things rather tend to land on one's desk too late for one to do very much about them. I have, in the backward direction, been trying to do as much as I can to get it right and I shall continue to do so.

Lord Kennet

We can all sympathise with the noble Earl's plight. But if, when it landed on his desk, instead of saying, "OK, I will do my best" he had said, "I am not going to move it; I am not going to present that to the House of Lords—I am just not going to do so", is it not possible that within three weeks his departmental lawyers and the parliamentary draftsmen would have produced a positive clause which the whole House desires? That is just a thought with which to leave the matter. I shall not press the deletion of the schedule.

Schedule 4, as amended, agreed to.

Clause 31 [Finance]:

8.59 p.m.

Baroness Birk moved Amendment No. 113BA: Page 17, line 28, leave out ("may") and insert ("shall").

The noble Baroness said: This small starred amendment is brought forward to ensure that the Secretary of State makes grant-in-aid payments. The commission, quite apart from all its other obligations, may have compensation payments to make on behalf of the Secretary of State under Section 9 of the 1979 Act. The Bill makes it clear by way of amendment of that section—paragraph 29 of Schedule 4 on page 48, line 30; one sees how much work we have to do to trace all this blessed stuff—that the commission will be doing the paying out even though it is some action of the Secretary of State that provokes the payment of compensation.

The amendment also provides an opportunity to discover how the payments referred to are actually to be made. Will it be just one payment per annum, or monthly payments? How will the payments be made? Will there be supplementary payments for such items as the compensation payments referred to, or will the Secretary of State just indicate a budget within which the commission should work and thereafter meet the bills in some other fashion? I am afraid that I did not have a chance to tell the noble Earl about this amendment, so if he does not have the answers to hand perhaps he will write to me about it.

The Earl of Avon

As the noble Baroness says, this amendment would require the Secretary of State to pay to the commission the sums agreed by Parliament, whether or not, in the event, they needed them. This would to some extent go against the established procedures.

The level of grant-in-aid to the commission will be annually negotiated between the commission and the Secretary of State. It will then be put before Parliament in the normal way. The Secretary of State will then be able, under Clause 31(1), to make payments from that money as it becomes necessary.

The level of grant agreed is a ceiling. But it is not then simply issued, whether in a lump sum or in monthly instalments. As a custodian of public funds, the Secretary of State will need to know how much the commission have spent and how much they need, and to tailor his payments accordingly.

I can assure the noble Baroness, Lady Birk, that the use of the word "may" is not intended to imply that the Secretary of State will withhold money from the commission. Clearly, provided that the commission are fulfilling their functions properly and within the agreed policy framework, he will be anxious to provide financial support for them. What it means is that he may pay out money up to the limit approved by Parliament. I hope that this explanation will satisfy the noble Baroness. I do not think that I have answered all her questions, and if I have not, perhaps she will let me write to her.

Baroness Birk

It may be that when the noble Earl has read what I have said he will write to me in answer to some of the points that he has not covered. However, I shall not delay the Committee any longer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Birk moved Amendment No. 113C:

Page 17, line 30, at end insert— ("(1A) At the end of each financial year the Commission shall retain and carry forward the unexpended balances of such sums as may have been paid to it by the Secretary of State for the provision of grants, for research and for expenditure on ancient monuments archaeological areas and buildings and areas of special architectural or historic interest owned or managed by it from year to year.")

The noble Baroness said: This amendment is the first of several that deal with financial matters. We have already had an amendment on a charitable trust to receive voluntary contributions, and it is important that the Bill is right in financial terms because this is essential for the viability of the commission. The creation of the new agency is not a cheaper solution to the provision of resource for conservation through the department, as is the present situation. The new commission will be almost entirely dependent on grant aid, from which the existing staffing and overhead costs, which at present are not distinguished from the general running costs of the department, will need to be met.

It is essential that these inescapable costs— including, for example, index-linked pensions— should be clearly set out in advance, and that for grant aid purposes they should be accepted as additional to the funds available for the conservation of monuments, buildings and areas. Unless this distinction is clearly established, there is a danger that the funds made available to the agency for the repair of monuments and historic buildings will, in real terms, be less than those currently available, and that in the future administrative costs will swallow up a progressively larger share of the grant-in-aid. Any transitional costs involved in setting up the new agency should also be met by the department. This is really essential because at the moment there is not enough money for both the boards to do their real work; and if they have to pay a great deal more in administrative costs, then that money will be lost to conservation.

The National Trust, some local authorities and church authorities, as well as many private owners, have expressed concern lest the total sum now paid in grants to outside owners should be reduced. However, there are well-known dangers in making hypotheses, so it would be inappropriate to amend the Bill on the subject. Accordingly, there are no amendments on the Marshalled List; but we then get into that difficulty over finance. Will the Government give an assurance that the provisions of adequate sums for each of the commission's activities will be given high priority? Can the Minister give some indication of how it is intended to safeguard the risks envisaged?

However, the main point of this is the retention of unspent balances. This is a matter of very great importance. How do the Government intend to deal with the problem? Have they in mind some form of three-year controlling grant, at least, in order to get over some of the difficulties? There is a precedent for the carrying forward of unspent balances in the purchase grants for trustee galleries and museums, which may be carried forward to succeeding financial years.

One of the principal weaknesses in present arrangements for funding grants to owners of historic buildings and ancient monuments is that there is no provision for carrying forward unspent grants from one financial year to the next. This is a very complicated matter; it is also extremely important. But I am very well aware that time is going on and we still have quite a lot to do, so I shall cut short my remarks there, although this matter needs to be gone into in far greater depth.

I would simply conclude by saying that longer term planning and financial targets will be quite impossible to realise if expenditure is planned for only one financial year but unavoidably slips in time and is then cut from the following year's allocation. One needs to be able to carry forward unspent balances. Secondly, it should not be on an annual basis, which can be quite catastrophic for any sort of planning and, in fact, in itself leads to unspent balances. Preferably there should be a quinquennial period or at the very least a triennial period for grants and grant-in-aid. I beg to move.

Viscount Hanworth

On the one hand, the Government are saying that the commission should be as independent as it possibly can, but in many areas, of course, it is merely reproducing the Civil Service procedure and the Treasury procedure. I understand that the Government cannot accept this amendment as it is. But I think what must be realised is that, if they are to do their very best to make the enterprise as a whole profitable, and all that happens is that this goes in or is deducted from the grant that they will make next year, there will be no commercial incentive whatever. I hope that the Minister can take this point on board and see that some incentive at least remains.

Everybody knows the disadvantages of the inability to carry money forward from one year to another. This leads to the most appalling things; of people just spending their money wastefully at the end of the year and not taking into account what they could do taking a longer view. I hope once again that the Minister, without completely breaching the Civil Service procedure on this, can do something to ensure that this organisation—which once again I say is supposed to be so independent, which is the reason why it is not part of the Civil Service—has at least some of the commercial benefits of being independent.

The Earl of Avon

This group of amendments addresses the question of exactly how the commission's grant regime will operate. We are all agreed on the extreme importance of this issue, but I think I must say at the outset that the Government consider that in general it is an area in which it is difficult to legislate. The commission's financial needs will not be set in concrete, and to legislate on the detailed financial arrangements is to risk introducing an unwelcome element of rigidity which could bedevil the commission at a later stage.

That said, I am fully aware of the real concerns expressed by many speakers in the Second Reading debate and the two speakers this evening that the Government's proposals could not succeed unless the commission were funded in such a way as enabled it to meet its commitments. Rather than speak directly to the amendments of the noble Baroness, it may be more useful if I outline some of the principles of the financial regime that the Government propose to establish, and by so doing demonstrate the way in which the Government intend to meet the concerns which lie behind these amendments.

As has been recognised, the expenditure of the commission will fall into three categories; namely, administrative costs, grants and expenditure on the care of monuments owned or managed by the commission. Grant will be paid to the commission under each of these headings, and, to prevent the diversion of programme funds to meet administrative costs, the virement of funds into the administrative budget will not be permitted. It is, however, the intention that the commission should be able within limits to vire between the other categories, and also out of the administrative budget; this is normal practice. It is I think essential that they should have the flexibility to reassign a portion of their programme funds to meet changing needs and circumstances, and that they be allowed to invest any administrative savings in the heritage.

As regards the question of the carry-over of unspent grant from one year to the next, we recognise that not all of the commission's expenditure can be easily predicted. I have in mind here the grants which the commission will pay for the maintenance and repair of monuments and historic buildings, where the demand is difficult to predict. This is dependent on the climate, on the construction industry and, most unpredictable of all, the decision of individual owners of buildings and monuments.

The Government have considered this question very carefully and as a result I can assure the Committee that carry-over of unspent funds which have been committed but not spent on grants will form part of the financial regime. This will enable the commission to be certain that they will have the money to meet a grant offer they have made whenever the recipient takes up that offer. This is, I believe, a significant advance which provides clear evidence of the Government's recognition of the importance of both the heritage and the commission's place in helping to preserve it.

Flexibility is also important in considering the way in which the commission's income will be treated. One of the objectives of the commission will be to bring a fresh approach and new enthusiasm to the presentation of the heritage. They will be unlikely to be active in this area if the fruits of their labours are automatically clawed back by the Treasury in the form of reduced grant. Once again I am happy to be able to give the Committee an assurance. Any increases in income resulting from the presentation of heritage sites brought about by the commission will not automatically lead to reduction in their level of grant. However, the commission will be publicly funded and, if their receipts were in future to become substantially greater, it would be improper if that fact were not considered by the Government, who must retain their responsibility on overall public expenditure levels. The Government will, however, seek in so far as possible to ensure that income generated by the commission is available for reinvestment in the heritage. I should like also to make it clear here that, in so far as the commission manage to attract private donations or commercial sponsorship, the Government have decided that such income will not be taken into account in the negotiations on the level of grant-in-aid.

I have spoken for too long, but this subject is vital and I think that what I have said indicates clearly the Government's belief in that, and also their commitment to the new body, and expands on what I have been able to say on previous occasions about the financing.

Baroness Birk

I thank the Minister for that not only full but hopeful reply. As I understand it, he said that the unspent balances will be able to be kept. He also went into the next amendment, which I have not yet moved, on the question of profit arising. All I would ask on that is about the words "substantially greater". I think the noble Earl said that if the profits are "substantially greater", that has to be taken into account.

I should have thought that at this time, with the commission being set up and things being as they are, this should not even be operative or find a place in the Bill because that will immediately cast doubt and anxiety. In any event, it cannot possibly arise in the near or even medium-term future. I should be happier, therefore, if, when the Government have reconsidered the matter and perhaps returned with an amendment, that will be attended to.

I think the noble Earl referred to my Amendment No. 113E and said the commission would have powers of investment. I may be speaking somewhat out of order, and I comment on the matter simply because he covered the whole financial field. That relates to any control there may be over the powers of investment. As the Minister has made a general statement, I shall not ask him to go into detail on all the amendments on that aspect. I am simply anxious to know that all the amendments up to 113E are covered by the general approach he outlined in his speech relating to the financial side of this part of the Bill. Perhaps we can leave it like that, and the noble Earl can either return with suitable amendments, or perhaps those concerned could have a meeting with him to examine Government thinking on the matter in more detail and learn how far they are prepared to go following this stage of the Bill.

Lord Beaumont of Whitley

Many of your Lordships must be extremely grateful for the progress we have made as a result of the noble Earl's recent speech. Flexibility, the retention of profits and sponsorship are the three important factors and if the moneys involved in each of those three are dealt with in the way the noble Earl outlined, we shall have made a considerable step forward, not only in the Bill but in the way the matter is treated by the Government and the Treasury. In a way we have made a bit of a breakthrough, and we are indeed grateful to the Minister—even, I would say, to the Government—for making the point he has made. We look forward, of course, with the usual suspicion of the Oppositon to what will actually emerge in the form of amendments at the next stage, but it appears extremely hopeful and I am sure we are all pleased for what the noble Earl said.

The Earl of Avon

I am wondering whether the noble Baroness, Lady Birk, intends to speak separately to Amendment No. 113F, dealing with capital sums, or whether she would like me to deal with that now.

Baroness Birk

I would prefer to deal with that when we come to it, after 113E.

The Earl of Avon

Very well; because I have some remarks to make about 113E and 113F. In the meantime, perhaps I might comment now on the use of the phrase "substantially greater". I feel that having, as it were, given quite a lot with one hand, it would be fair to give just a little with the other, and I think it would be difficult not to include that proviso. I am grateful for the remarks of the noble Lord, Lord Beaumont, and I hope that when people have been able to read my remarks, that will make a good focus for us, should there be any more points to raise on the issue, on Report.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 113D not moved.]

Clause 31 agreed to.

9.19 p.m.

Baroness Birk moved Amendment No. 113E: After Clause 31, insert the following new clause:

Powers of investment.

(".— (1) Any sums paid to or recieved by the Commission which are not immediately required for any other purpose may be invested by the Commission in accordance with this section.

(2) Sums directly or indirectly representing money paid to the Commission uder section 31(1) above or section (Capital sums) below may be invested in any manner approved by the Treasury; and the Commission—

1. (a) shall not invest any amount available for investment which represents such money except with the consent of the Treasury; and
2. (b) shall, if the Treasury so require, invest any such amount specified by the Treasury' in such manner as the Treasury may direct.

(3) Any sums to which subsection (2) above does not apply may be invested in accordance with the Trustee Investments Act 1961; and sections 1, 2, 5, 6, 12 and 13 of that Act shall have effect in relation to such sums, and in relation to any investments for the time being representing such sums as if they constituted a trust fund and the Commissioners were the trusteees of that fund.")

The noble Baroness said: We have partly covered the ground of this amendment, which deals with the commissions powers of investment, but the Bill does not give any hint of any control there might be over such investments. It seems essential that there should be powers of investment and that whatever controls there are—and there obviously will be some—should be set out. The amendment is based on a section in the National Heritage Act 1980 covering the very similar situation of the National Heritage Memorial Fund. I beg to move.

The Earl of Avon

I fear that on this particular point I am not going to be as reasonable as perhaps the noble Baroness may wish. In the Governments's view, the commission's role is largely an executive management role, using the experience and expertise that it gains from that to advise others on the preservation and proper and sensitive presentation of the heritage. I have explained to the noble Baroness how the actual grant-in-aid will work during the year, and from that she will have realised that there will be little possibility of investing it, although of course the commission would be able to put it on deposit.

Therefore we come to the question of the capital fund, and, again as I have just said, we believe that the commission's role should be mainly an executive management role, and we are looking to the National Heritage Memorial Fund to be the capital arm (if that is the right way of putting it) of this body. At the moment we do not envisage the commission having a capital fund, and therfore there is no need to have such powers of investment.

Baroness Birk

I do not think that I can pursue the matter any further at this stage, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Birk moved Amendment No. 113F: After Clause 31, insert the following new clause-—

("Capital sums

.—(1) The Secretary of State shall pay a capital sum of £10,000,000 to the Commission on the coming into force of this Act and the Commission shall invest it in accordance with section (Powers of investment) above and may expend it and income from it in whole or part at its discretion.

(2) The Secretary of State may pay such further capital sum or sums to the Commission from time to time as the Treasury may agree, to be invested and expended in like fashion.").

The noble Baroness said: I shall be brief on this amendment, but I really must move it because it involves the question of a capital sum for the new commission. The two consultation papers repeatedly emphasised that one of the main reasons for setting up an independent commission is to improve the presentation of Government-owned monuments and to manage the associated trade operations more commercially. But a change of the kind envisaged by the Government cannot be brought about without some significant capital investment, and this should in time yield increased revenue. However, it cannot be funded from the annual Treasury grant.

Despite what the Minister has just said on the previous amendment, I must get on record our thinking on this matter. Since I think that it is generally known, I shall not at this stage detail the expenditure, but it would involve such items as developing installations, improving maintenance of visitors' facilities, and so on. As the Minister himself said, there is in the National Heritage Memorial Fund a precedent for setting up a new commission with a capital sum. This has been an outstanding success. One reason for its success was that it started with a reasonably large capital sum, even before it received its subvention.

The tourist side of this matter is going to be extremely important. As we said both on Second Reading and earlier during the Committee stage, the department has probably fallen down very often, partly on presentation, and on the advertising and publicity material. But if the commission is to be able to do better, it will need more, not less, funds. The sum of £10 million has been proposed in the amendment as a figure to think about. It could well be that to cover this type of enterprise—and that is evidently what the Government want—the figure should be nearer £15 million, or £20 million. I beg to move.

The Earl of Avon

A central focus for the heritage and an important voice for conservation are other complementary roles of the commission, but, so far as I can see, none of the things that I have said, nor, I believe, those which the noble Baroness has just been suggesting, predicate any need for a capital fund. A fund surely is for major purchases of heritage property and, as I have already said, in this field there is the highly regarded National Heritage Memorial Fund.

I believe that it would be wrong to provide for duplication by giving the commission investment funds in this way, particularly when in setting up the new body the aim is to cut down on the diffuseness of existing heritage arrangements. I think it worth making the point that the commission will have its work cut out to discharge the executive and advisory responsibilities that it has been given, without seeking at its inception a much wider role. At the moment I cannot see the need for a capital fund. I thought that the noble Baroness was talking more about the running costs of publicity and that sort of thing rather than capital funds.

Baroness Birk

The capital fund is needed here not for buying buildings but in order to invest to increase the revenue it will need to be spending, to a far greater extent than the department is spending or that the two boards separately have been spending. This is tied up with a previous amendment on which the Minister (as he rightly said) was not very helpful. That dealt with the power of the commission to be able to invest. The capital sum is not meant for them to buy up property but to set themselves up and carry out all the duties they are supposed to carry out and to do so in this very much more creative and inspiring, innovative way. I think that it is getting rather late to pursue this. I wanted to make the point of the amendment and then to seek to return to it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Airedale)

Immediately before Amendment No. 113G on the Marshalled List there appears to be a two-line amendment which is unmarked and unnumbered. It is about stamp duty. Does the noble Baroness move that amendment?

Baroness Birk moved the following Amendment: After Clause 31, insert the following new clause:

("Stamp duty.

All conveyances and transfers of property made to and from the Commission shall be exempt from stamp duty.").

The noble Baroness said: This amendment is much like an earlier one suggesting that the commission should not have to pay tax because, if the commission purchases or sells property in the course of its activities, stamp duty will fall to be paid if not by the commission then by those it deals with. I should like an assurance from the Minister that stamp duty will be exempted. If that provision is not possible in this Bill, because it is a financial matter, then perhaps it could be inserted into the next Finance Act.

The Earl of Avon

As the noble Baroness is aware, we are having a look at the taxes and I will take this into account at the same time.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.28 p.m.

Baroness Birk moved Amendment No. 113G: After Clause 31, insert the following new clause:

("Transfer of functions: Royal Palaces and Parks.

(1) Her Majesty may by Order in Council provide for the transfer to the Commission of any functions exercisable by the Secretary of State with respect to any Royal Palace or Royal Park, or part thereof, not in the occupation of a member of the Royal Family.

(2) An Order under this Section may contain such incidental, consequential and supplementary provisions as may be necessary or expedient for the purpose of giving effect to the Order.

(3) No Order shall be made under this Section unless a draft of the Order has been laid before, and approved by a resolution of, each House of Parliament.").

The noble Baroness said: This deals with a transfer of the functions of the Royal Palaces and Parks. I think it is very late now to deal fully with this. All I would say on this matter is that this should be done by Order-in-Council, as the amendment says. The whole question of how far they should be part of the commission, either to start with or later, needs more thought. At this stage the way we thought of dealing with it was that there would be an enabling clause, so to speak, on the table which could be brought in when necessary. The Palaces, which are uninhabited to start with, would be taken over to the commission at a time when it is thought likely—and, similarly so with the Royal Parks. Personally, I am not happy at the idea of the Royal Parks going—certainly in the foreseeable future—because it is not something that the Ancient Monuments Board or the Historic Buildings Council really have a great deal to do with, except in the case of the park at Hampton Court which is right by the palace itself.

I think that it is possible to let the Royal Parks lie fallow for the time being. This is really a probing amendment just to see what ideas the Government have or whether they are waiting to see again how we are going to respond and put this together. It seems to be something we shall have to come back to at the next stage. I do not think we should rush it through tonight. I beg to move.

The Earl of Avon

Perhaps this amendment will give me an opportunity to put the Government's side of this matter on record. We have considered carefully, in the course of discussions about the new commission, whether functions in respect of Royal Parks and Royal Palaces should be included in the commission's remit. However, the Government have concluded not to do so. All buildings with the status of a Royal Palace are in a very real sense Royal. People regard such places as Hampton Court Palace and the Tower of London as closely connected with our national history and with the Monarchy; it is indeed the Royal linkage with these places which makes them such attractions.

It could be argued that these buildings are so important in terms of their historic fabric that they should be able to have the benefit of the commission's expertise. The Government believe that such expertise in respect of archaeological and historical questions can be provided by the commission through their general advisory role. But to delegate to the commission the work of maintaining these buildings would, in the Government's view, be to divorce itself too far from the sensitivities surrounding them.

There are also major security issues at these places. The Tower of London contains, as the Committee knows, the Crown Jewels, and has been the subject of bomb attacks. The contents of Hampton Court Palace are priceless in value. The safety of the many inhabitants of both places has to be ensured. All these considerations seem to the Government to go beyond the role of the commission.

It has been argued that the commission will have tourist expertise in the presentation and commercial management of these properties. There is truth in this, but I am sure the Committee will agree that the commercial presentation of Royal Palaces ought not to be the first consideration. What is important about such properties is their history, their status, and their relationship to the Monarchy. Their tourist presentation is important but subsidiary. The Government have in mind to look to the new commission for advisory expertise in the presentation of such properties to the public, within the constraints of their Royal status, but the Government believe that the overall management of the palaces must be retained to the Secretary of State.

As to the Royal Parks, similar sensitivities to those I have described apply here. These are important open spaces in London with Royal connections. They form a vital part of the central London scene and provide recreation for both Londoners and visitors. Security considerations affect the Royal Parks very closely, as we have only too tragically been made aware in recent months. Like the palaces, the Government consider that they cannot devolve management responsibilities here. In any case, the Government see the management of the Royal Parks as an issue entirely separate from the basic functions of the new commission in respect of ancient monuments and historic buildings. The Government believe that it would be wrong to extend the commission's remit in this way. We have reached these decisions after long and careful thought and I hope that the Committee will consider them.

Baroness Birk

I thank the Minister for that explanation. I take it that this means that if on a future occasion the Royal Palaces come under the commission's mangement that would need legislation. Is that so?

The Earl of Avon

I imagine it would, yes.

Baroness Birk

As I understand what the noble Earl was saying, the Government have no intention at the moment of putting in any enabling clause. I raised this matter by means of an enabling clause to see whether they were going to do that. May I say I am delighted to hear that the Royal Parks are going to be kept outside this Bill. That is absolutely right because they are different from buildings and ancient monuments. If what are known as the money spinners, like the Tower of London and Hampton Court, are to be kept by the department away from the commission, then two matters arise. One is the lack of incentive to make money and inspire more enterprise in the running of these places. How are the commission going to show this entrepreneurial vigour on which the Secretary of State puts such emphasis?

Secondly, there is the question of the specialised staff. Will they be the staff employed by the commission who will then go back to the department? Will the department be having its own staff to look after the Royal palaces entirely on their own?—because at the moment this goes across a whole area in the department which requires conservation and so on. Those are some of the practical problems which will arise. How do the Government see that working?

The Earl of Avon

If we can just take the two different places, Hampton Court and the Tower, they are in themselves two different cases because, as we said when we discussed the Tower of London, the financing is rather difficult. The DoE, as it were, has a main door and therefore the Armouries would be funded from a grant-in-aid which would obviously have an effect on the main door. The Armouries would not have their own collection. We did touch on that with regard to the Armouries earlier.

As regards Hampton Court, I should like to say again that, as it is a Royal Palace and, as we have seen recently, it is used from time to time, one would not want the money consideration to be the prime point there. We would look to the palace going on as it is at the moment but getting advice from the commission in its advisory capacity.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Birk moved Amendment No. 113H: After Clause 31, insert the following new clause—

("Royal Commission on Historical Monuments (England)

.—(1) The Secretary of State, the Commission and the Royal Commission on Historical Monuments (England) shall consult together as to the desirability, or otherwise, and how the responsibilities of the said Royal Commission can be assumed by the Commission.

(2) The Secretary' of State shall present a report to each House of Parliament on these consultations and, if the report so recommends. Her Majesty may by Order in Council provide for the Royal Commission on Historical Monuments to cease to exist and for the new body to be set up under any necessary statutory provisions.

(3) An Order under this section may contain such incidental, consequential and supplementary provisions as may be necessary or expedient for the purpose of giving effect to the Order.

(4) No Order shall be made under this section unless a draft of the Order has been laid before, and approved by a resolution of, each House of Parliament.")

The noble Baroness said: Up till now this whole subject has been an extremely controversial one since the Bill was first mooted. The consultation papers left it rather wide open, and, as has happened with so many things, threw the ball to us here as to what should happen to the Royal Commission on Historical Monuments.

The Royal Commission itself has, by way of paper and discussion, expressed its concern about its future. There seems to be a lack of desire to be absorbed by the new commission. This new clause is an enabling clause but it requires the Royal Commission, the Secretary of State and the new commission to consult together as to the diesirability or otherwise and the best way of bringing the Royal Commission in with the new commission so that the major aim of bringing all the agencies together is achieved.

This amendment should be taken at this stage as a probing amendment and also as an earnest of goodwill towards the Royal Commission. Nobody wants to abolish the Royal Commission in the sense that its work ceases to be done. On the contrary, its work must continue to be done and done in the present spirit of great and dedicated scholarship and by the same people. Nonetheless, one has to look at the wider scene. The commission will need to engage in research and it needs to have all the knowledge and expertise of the Royal Commission at its disposal, because the Royal Commission has the information and the knowledge which the commission could not get anywhere else; yet it must not unduly disrupt the future research to be done by the men and women in the existing Royal Commission, whatever may become of it.

The commission also needs to have ready access to the photographic library of the National Monuments Record, which is now a section of the Royal Commission. This is a marvellous tool, containing half a million photographs; and recourse to it has to be very easy because time is often of the essence. The Royal Commission also has researchers who should be in free converse with the commission staff; and all that will be best achieved if the two are much more closely linked and more closely integrated than they are at the moment.

It is evident that the Government are looking for a lead. Both the first consultation paper and The Way Forward were deliberately neutral. I think that we have probably now reached the stage where, if it is considered necessary for there to be some form of integration, then the only way it can be done is at a time—and the Royal Commission is at the moment concerned with finishing its work on the Ordnance Survey—when the Royal Commission would be ready in, I understand, some months to discuss it. Also, there should be consultation as to whether integration is desirable, or whether there is some other means of preserving the close link which. I understand, is essential, without necessarily absorbing the Royal Commission into the commission. I beg to move.

9.40 p.m.

Lord Adeane

I am most grateful to the noble Baroness, Lady Birk, for her remarks about the Royal Commission and its work. In case it is not already absolutely clear, I should state that the Royal Commissioners have at present a decided and unanimous preference, in which they are supported by their staff, for doing their work outside the structure of the new agency, but in close co-operation with it. Perhaps I may explain why that is so. Perhaps it is also the view of the Government; otherwise, they might not have left the Royal Commission out of the Bill. I do not know the answer to this. But I do know—and here I must disclose my interest as chairman—that the Royal Commissioners themselves consider that their responsibilities and duties should not be absorbed into the new agency, but should continue to be performed independently.

I refer purposely to the responsibilities and duties being absorbed, because I doubt whether the Royal Commission itself is capable of absorption. If this were to be attempted, it would cease to be a Royal Commission and would become a committee of the new agency or something of the sort, which would be a very different affair altogether. But whatever is done, the duties and responsibilities will have to continue. Someone has to do this work, which I described at the Second Reading of the Bill and will not weary your Lordships with again, except to say that they are mainly those of recording and assessing our architectural and archaeological heritage and curating the results of their researches.

Why should we consider that we can carry out these duties better, on behalf of the nation and the public—because it is them that we are concerned with—outside rather than inside the new agency? The answer, so far as we are concerned, is one of principle, though there are also practical aspects. The principle is that the nation's record of its heritage should be made and looked after as an important and independent function, the results of which are publicly and freely accessible.

At present, this function is vested in the Royal Commission, as your Lordships know, which, in accordance with its warrant, discharges it through scholarly and systematic investigation across the country, very often with local help. These investigations are published in a variety of ways and, as the noble Baroness has already mentioned, they are recorded in the National Monuments Record in London. This is open to the public daily. We think that it is of the first importance that these principles of independence in the collection and care of the record and of public accountability should be recognised and protected. The credibility and the very nature of the record depend upon its impartiality and independence from any restraint of current legislation, expediency or particular politics.

Finally, I should like to say a very brief word about the Royal Commissioners themselves. They are appointed by the Prime Minister, on the Prime Minister's recommendation. Not only do they meet as a body and in committees, but they do a great deal of work for the Royal Commission as individuals in the various fields in which they are recognised experts. These services are all given free, and willingly.

Having said all this—I hope not at too great length—I must point out that the last thing the Royal Commission wants to do is to try to build up any wall of opposition to the general purposes of the Bill. That is very far from being our business or our wish. We are anxious to help and to co-operate with the new agency after it is set up and when we know more exactly what it is going to do, but, as I have told your Lordships, we think that we can do so better from outside. In this connection, I should mention that we are already co-operating—not with the new agency but with the department—by undertaking to look after the archaeological work of the Ordnance Survey. Otherwise, this would presumably fall to the lot of the new agency. We are very busy getting it set up. The amendment moved by the noble Baroness, Lady Birk, recognises the possibility of consultations and procedures into which the Royal Commission could very readily enter. This is what we want, but we want to enter them from outside.

Lord Beswick

When I first read Amendment No. 113H and the following amendment which stands in the name of the noble Lord, Lord Sandford, I thought that there was some implied criticism of the Royal Commission on Historical Monuments. There is a threat of extinction in the first amendment and the promise of a probationary period in the second. I did not think that in either case this was merited by the record and the work of the Royal Commission, so I was delighted to hear what my noble friend Lady Birk said: that it is not a criticism of the Royal Commission but a desire that their undoubted expertise and scholarship should be made available to the new body.

I venture to offer one thought which supports what has just been said by the noble Lord, Lord Adeane. In these matters there can be over-organisation. I should have thought that the cult of rationalisation and merger had been overdone a little in recent years. There are some experiences which suggest that there is merit in an independent unit. The very quality to which my noble friend Lady Birk referred in the Royal Commission seems to have grown and been developed from its independence. Therefore, I hope that what has just been said will be taken very much to heart.

Indeed, I wonder whether any legislation at all is needed. In my experience, consultation and a proper working agreement can be reached over the lunch table. It does not need to be dealt with through Parliament. I would seriously suggest that there should be consultation between the various parties to see whether or not a proper working arrangement could be reached which would make available to the new commission the undoubted expertise and experience which the Royal Commission has amassed.

Lord Kennet

I am a romantic about the Royal Commission, and I believe I perceive that most members of the Committee will be romantics, too. It is a freestanding instrument of scholarship: very small, unprotected by any university, unprotected by any research council, unprotected by any firm, unprotected by any Government department. Yet the present Government have not abolished it. It is wonderful that, in the candle-ends atmosphere of the present day, it should still have survived. I remember, from 15 years ago when I was looking after these things in the Government, an excellent paper by Sir Nikolaus Pevsner outlining how he thought the Royal Commission could finish its allotted task within 300 years instead of the 500 years which, at the current rate of progress, it would take. I am glad to say that that paper was not adopted, either by the Royal Commission or by those in the Government who could have funded the Royal Commission to finish the job within a shorter period. Let us not legislate about it in any way which is not wholly welcome to the Royal Commission itself. As the noble Lord, Lord Beswick, has just said, there is still a role for the totally independent and the very small in matters of research of this kind.

Lord Sandford

I believe it might be for the convenience of the Committee, and may help expedite our business and my noble friend in making his reply, if I were to speak to my amendment, Amendment No. 114, while we are discussing this amendment. I would point out that as compared with Amendment No. 113H, my amendment is quite different and does not at all presuppose the abolition or extinction of the Royal Commission, although I have to say that if I were drafting my amendment now, in the light of the debates we have had so far, for the word "future" I would substitute future relationships between the Commission for Ancient Monuments and Historic Buildings for England and the Royal Commission". which would give it a rather different sense. If we were starting from scratch——

Baroness Birk

We are.

Lord Sandford

——and seeking to establish a body to adopt a single, integrated approach to the care of the heritage, I have little doubt that we would regard academic research into the heritage as being fundamental to the care of it and scholarly study of the heritage as needing to be integrated with the care of the heritage. Because of that, when I came to draft Amendment No. 92 on the aims of CFAMAHBFE I put "recording" before "conservation". I believe it is the absence of any reference to this academic dimension in the work of the CFAMAHBFE that is causing the concern which has been expressed by the noble Lords, Lord Beloff, Lord Baker and Lord Blake, in our debates and by the president of the British Academy in The Times a few days ago.

I have expressed my view to the president, the Master of Selwyn College, that it is the close involvement or even incorporation of the Royal Commission in the work of the CFAMAHBFE that will be the best way of dealing with this concern and setting it at rest. But we are not starting from scratch. Here we have an eminent Royal Commission with a distinguished track record going back 75 years, and we have a new and untried CFAMAHBFE in embryo form. It may well not be right to abolish the Royal Commission and incorporate it in this new commission at the present moment—or ever at all, as envisaged by Amendment No. 113H.

Even more, it cannot be right to enact this Bill without any clear indication of the Government's intentions about the role of the Royal Commission, on the one hand, and the new Heritage Commission, on the other. I have to quote in this regard from the letter which many of us have received from the Secretary of the Royal Commission, in which he says in paragraph 3: At no stage so far have the Royal Commission on Historical Monuments been asked by the DoE or anyone else to think about relations with the CFAMAHBFE.". If that is the situation it is too late, now that the Bill is already before Parliament, to settle the matter of these relationships fully and finally. Perhaps it is best to let the CFAMAHBFE become established, build up ad hoc relationships with the RCHM and then make proper provision for appropriate relations—it could be full incorporation or some other relationship—at some other appropriate date, using an amendment much along the lines of that which I have proposed when that time comes about; but that may not be yet.

The Earl of Avon

With the leave of the Committee, I shall direct my remarks to both this amendment and Amendment No. 114. The position of the Royal Commission on Historical Monuments for England in relation to the new commission is a particularly difficult issue. The noble Baroness, Lady Birk, has said that the broad arguments for and against the inclusion of the Royal Commission have been set out in both the original consultation document and in The Way Forward. A large number of responses to both documents have included clear views on the issue but with no overwhelming majority for either inclusion or continued independence.

The Government have not yet taken any decision, and the views of the Committee this evening will be very valuable in the further consideration which must be given to the issue. I have it written here that I am only sorry it has come on so late, but in spite of the late hour we have had many interesting contributions on the subject. We will read carefully what the noble Lord, Lord Adeane, has said in what I found his very balanced and reasonable remarks. The Government will, of course, wish to make public their decision as soon as it has been reached. Meanwhile, I hope the Committee will be able to read the interesting contributions we have had tonight in a very valuable airing, and no doubt we shall be returning to it later.

Baroness Birk

When are we going to have the benefit of the Government's thinking? The noble Earl made a very elegant speech and thanked us all very nicely, but he said nothing at all about the future of the Royal Commission.

The Earl of Avon

I must have done very well. I was told to be neutral.

Baroness Birk

Perhaps the noble Earl will call a Division on it. In the absence of anything further, for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Dissolution of certain bodies]:

Lord Sandford moved Amendment No. 114: Page 17, line 37, at end insert— (" ( ) The Secretary of State may by statutory' instrument subject to an affirmative resolution of both Houses make such arrangements for the future of the Royal Commission on Historical Monuments as may be necessary.").

The noble Lord said: Perhaps my noble friend could tell me why I should withdraw my amendment. It does not commit the Government to anything.

The Earl of Avon

I have not said my noble friend should withdraw it. I have just said that the Government have not made up their minds.

Lord Sandford

I beg to move Amendment No. 114.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

The Question is, Whether the said amendment (No. 114) shall be agreed to? As many as are of that opinion will say, "Content"? To the contrary, "Not-Content"? Clear the Bar.

Tellers for the Contents and the Not-Contents have not been appointed pursuant to Standing Order No. 50. A Division therefore cannot take place, and in accordance with Standing Order No. 53, which provides that no proposal to amend the Bill in the form in which it is before the Committee should be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.

Clause 32 agreed to.

Clause 33 agreed to.

Schedule 5 [Minor and consequential amendments]:

10.2 p.m.

Lord Strabolgi moved Amendment No. 115: Page 56, leave out lines 39 and 40.

The noble Lord said: With your Lordships' permission, I should also like to speak to Amendment No. 119 to Schedule 6, which is consequential. These amendments are to paragraph 1 of Schedule 5, which is headed: Minor and consequential amendments".

In actual fact, they are quite far-reaching, as I shall attempt to show. I have put down this amendment in order to retain adequate parliamentary control over the Executive; control which will cease if Schedule 5, paragraph 1, is passed in its present form. Section 3 of the National Gallery and Tate Gallery Act 1954 was inserted to allow the state to accept gifts or bequests, the destination of which might be unspecified. Power was given to the Treasury to direct the vesting of such gifts and bequests in the National and Tate Galleries or in any of the national museums and institutions listed in the first schedule to the 1954 Act.

If the Treasury wish to add any institutions to this list—which, I may say, comprises most of the national museums and galleries in the United Kingdom—then an order must be laid before Parliament. I must stress that we are not dealing here with loans but with transfers—transfers that will vest works of art permanently in other institutions. It would be interesting to know from the noble Earl how many other institutions have been added since 1954 with, of course, parliamentary authority. The matter is particularly germane to this Bill, since Clause 5(4) of the Bill allows the Victoria and Albert Board to transfer objects to any of the institutions listed in the first schedule to the 1954 Act, plus the British Library, the Armouries, and the Natural History Museum. This is acceptable, I submit, but how many other institutions are to be added? If the first schedule to the 1954 Act is to be enlarged by the Treasury without any parliamentary control, the V and A board could be persuaded at some time in the future to transfer objects to various non-national institutions, and transfers would be permanent and irrevocable. We are not dealing here with loans but with transfers.

Some institutions, such as those owned by local authorities, universities or charitable bodies, that could be added in future years might not have the same safeguards about disposals. There have been cases recently in these hard-pressed times of institutions planning to sell some of the works of art in their possession to meet current expenses. For example, the Dulwich College Picture Gallery in 1971 sold a painting by Domenichino, which was fortunately acquired at auction by the National Gallery of Scotland. This incident caused an outcry before Scotland came to the rescue. The University of Glasgow proposed in 1980 to sell from the Hunterian Museum part of its celebrated collection of paintings by Whistler. This project was abandoned after an outcry. The London Borough of Hammersmith and Fulham proposed last year to sell the notable collection of pre-Raphaelite paintings bequeathed to it by Cecil French. An outcry ensued, and the project was abandoned. The Herefordshire County Council recently proposed to sell a watercolour by Turner, to the acquisition of which the National Art-Collections Fund had contributed. Those are just a few examples.

If the Treasury want to add to Schedule 1 to the 1954 Act, I submit that Parliament should continue to be asked to approve by means of an order. Otherwise, Clause 5(4), taken in conjunction with Schedule 5, if unamended, will mean that the list of institutions to which the V and A can transfer objects can be enlarged at will by Treasury fiat without any parliamentary control at all.

If the Government are really anxious to add certain institutions to the first schedule to the 1954 Act, why cannot these, as an alternative, be specified in the present Bill? Then the list could be brought up to date in the normal parliamentary manner.

May I ask if it is proposed to add any of the bodies covered by paragraph 12 of Schedule 6 to the 1975 Finance Act which was discussed at an earlier stage of this Committee? Among these bodies we find the words, "any Government department", so that this extension of powers could mean the transfer—not the loan, but the transfer—permanently, without parliamentary control, of objects vested in the V and A trustees into the legal ownership of the Department of the Environment to use for furnishing purposes in publicly owned official residences and Government offices. The objects could then be transferred from there into the ownership of a non-national body, which had power to sell or otherwise to dispose of them. I think we need to know a little more about what the Government have in mind and what they are trying to do in conjunction with this amendment to Schedule 5, read in conjunction with Clause 5(4), and why they are attempting to by-pass parliamentary control, and are seeking such far-reaching powers. I beg to move.

The Earl of Avon

I should like to open by saying to the noble Lord, Lord Strabolgi, that the Government are not trying to do anything sinister in either this amendment or the next two amendments, to which I know he is going to speak. The object of the provision in the Bill is to simplify the procedures for adding to the list of national collections in which the Secretary of State may vest works of art left to the nation without any specific provision being made. At present the Secretary of State is required to seek Parliament's approval by means of an affirmative resolution of each House. The proposal would remove the requirement for the affirmative resolution and the noble Lord's amendment would have the effect of retaining that requirement.

The schedule contains the names of our major national institutions and only one institution has been added in this way since 1954. Some of our major institutions, which have been the subject of legislation since then, are treated as if they are in the schedule by virtue of their own Acts. The procedure is, therefore, rarely used, and, more important, rarely needed. I am informed that the present situation of the Victoria and Albert Museum would in no way be changed by this legislation. I have also been spoken to by the noble Lord, Lord Hutchinson, who said that although he is not pressing for this legislation, it would be convenient to have it. I assure the noble Lord that there is nothing sinister about this. If he remains unconvinced, then, of course, we shall not bother to do this amall, simplifying procedure.

Lord Strabolgi

I am somewhat reassured by the noble Earl's explanation. I am not too concerned about adding to the first schedule of the 1954 Act. What concerns me is the additional powers that the Government are taking in this Bill, in Clause 5(4), to add to that schedule whenever they wish, in conjunction with the list given in the Finance Act 1975, where they can add any local authority institution, any Government department, or almost anybody you can think of. It is this about which I am concerned. However, in view of the noble Earl's assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

Lord Strabolgi moved Amendment No. 117: Page 57, leave out lines I to 3.

The noble Lord said: I beg to move Amendment No. 117 and I should also like to speak to Amendment No. 121, which is to delete the consequential repeal to the relevant section of the National Gallery and Tate Gallery Act 1954, and appears in Schedule 6.

Amendment No. 117 seeks to retain certain wording in Section 4(3) of the 1954 Act, which requires the Treasury to lay a draft order before Parliament if the Government decide to increase the proportion of works loaned for display in public buildings or official residences in the United Kingdom or elsewhere. Of course, "elsewhere" means our embassies abroad.

At present the proportions of the total holdings that may be lent in this way are fixed at 5 per cent. of the National Gallery's holding and 10 per cent. of the Tate's. The subsection was inserted in the 1954 Act—as I remember well—as an impediment to disproportionate increases in the number of paintings to be removed from ready public access by being lent for furnishing purposes to official buildings. These are, of course, paintings that belong to the nation and are supposed to be on view and to be seen by the nation. It was thought right that only a small proportion of them should be available for lending to official residencies.

These proportions seem rather generous to me, and if the Treasury wish to increase them, then at present parliamentary sanction must be obtained. That seems to be right. If you want to take more than 10 per cent. of the National Gallery's holding and increase that to 30 per cent., you have at present to come to Parliament and explain why you wish to do so. This sanction is obtained by means of an order setting out the reasons and an explanation why the Government want the proportion of works of art being removed on loan from the public view in the National and Tate Galleries to be increased.

The present Bill would remove the requirement to lay an order. Proportions could be increased, and increased substantially, by mere Treasury fiat without any parliamentary control at all. I submit that this is wrong. I hope that the noble Earl, Lord Avon, will provide an explanation of the reason behind this attempt to bypass Parliament. Do they want to take a lot more pictures from the National Gallery and the Tate Gallery and not come to Parliament and explain why? Why are they trying to do this? I see no reason why they should not have to lay an order and get parliamentary permission to take pictures out of the public domain, pictures that belong to the nation. I beg to move.

The Earl of Avon

The noble Lord is concerned that lifting the requirements for the affirmative resolution procedure in relation to the proportion of works of art that may be on loan from the National Gallery and the Tate Gallery collections at any one time in official residences and public buildings may lead to an undesirable increase in the number of such loans. I hope, if I can, to reassure him in two ways. First, since the passage of the 1954 Act no requests have been received from the two galleries to exceed the existing limits. Nor have any proposals to do so in the foreseeable future come to our attention. The present proportions are therefore clearly about right as things stand at the moment, and allow the trustees of the galleries the due amount of flexibility.

Secondly, should the trustees feel that particular circumstances warrant an increase in the number of pictures on loan in this way, they will still have to seek the Secretary of State's approval to a change in the proportion, which approval will be expressed in an order. All the Bill does is to remove the need to lay an order in draft in the event that a variation in the proportion was proposed, and to remove the need for approval by affirmative resolution where the proportion of objects on loan would be increased. Once again I assure the noble Lord that I can find nothing sinister in this. It is purely someone trying to tidy up in this particular amendment. Once again, if the noble Lord feels like pressing me, of course I will give way.

Lord Beaumont of Whitley

The noble Earl seems in his reply to have effectively stated that there is in fact no need for this part of the Bill at all because no one is envisaging changing the proportion. It seems to take away most of the reason for having these lines in the Bill. The only reason that the noble Earl put forward is that it seems to be administratively easier to remove the control of the proportion from Parliament to the Secretary of State. I think I speak for these Benches when I say that that is a thesis that we will always resist in principle, unless a case was seriously made out. I hope that the noble Lord, Lord Strabolgi, will stick to his point.

The Earl of Avon

May I say one thing to the noble Lord, Lord Beaumount? I ought to get this correct. It is proposed to retain the Secretary of State's power to vary these proportions by means of an order. So the Secretary of State would do it by means of an order.

Lord Kennet

It seems to me that no case has been made out for decreasing the power of Parliament in this matter. I hope that the noble Lord, Lord Strabolgi, will persevere with his amendment, especially since we know that the Government will accept it.

Lord Strabolgi

I am grateful for the support from the noble Lords, Lord Beaumont and Lord Kennet. I was rather surprised when the noble Earl, Lord Avon, seemed to give the impression that the Government thought that it was the trustees who were falling over themselves to lend paintings all over the place to official residences. It is not the trustees at all. They are trying to combat this. What happens is that the Department of the Environment come to them and say, "We want this, that and the other for our embassies abroad and official residences here", and then they have to come to Parliament and get permission if the amount is to be increased. I do not think that the Government's reply is satisfactory. The noble Earl implied that he might accept the amendment. If he will, I shall be very happy.

On Question, amendment agreed to.

10.19 p.m.

The Earl of Avon moved Amendment No. 118: Page 57, line 9, at end insert ("for England")

The noble Earl said: This is a small drafting amendment to correct a slip in paragraph 2 of Schedule 5. I beg to move.

On Question, amendment agreed to.

Baroness Birk moved Amendment No. 118A:

Page 57, line 20, at end insert— ("(n) The Commission for Ancient Monuments and Historic Buildings in England.")

The noble Baroness said: The Bill provides in Schedule 5(3) for the four major museums covered by the measure to be entered in Schedule 2 to the Charities Act 1960 with the effect—this is according to the Notes on Clauses—that they will be exempt charities within the meaning of the Act and, accordingly, not subject to registration under the Act and the supervisory powers of the Charity Commission, irrespective of what form of fund or trusting the charity——

Lord Mottistone

If I may interrupt the noble Baroness, my understanding was that when Amendment No. 97A was moved, 118A was moved with it; 97A was withdrawn and I am wondering why she is now talking to 118A.

Baroness Birk

I do not think I spoke to them together. So far as I remember, I did not speak to 118A.

Lord Mottistone

I think Hansard will back me up on that.

Baroness Birk

I certainly did not speak to the point with which I am now dealing. I was concerned with the form of the charity trust or charity fund which would be part of the Commission for Ancient Monuments and Historic Buildings. What I am now discussing applies to a different part of the Bill, and this amendment is designed to have the Commission for Ancient Monuments and Historic Buildings in England added to the list of museums so that it will not be subject to registration under the Act nor to the supervisory powers of the Charity Commission. That is all I am seeking to do, and I beg to move.

The Earl of Avon

We have already talked about amendments in respect of a trading subsidiary and charitable trust, and in this amendment the noble Baroness is suggesting that we should give the commission exempt charity status, in so far as it is a charity. This would mean that the commission, in so far as it operated or was able to operate as a charity, was not subject to Charity Commission supervision. It would thus be on all fours with the other trustee bodies in the Bill.

When I spoke to Amendment No. 97A, to which my noble friend Lord Mottistone referred, I said that the Government were looking urgently into the issue of the treatment of the commission's trading voluntary income. The commision will be a rather different body from the trustee bodies set up by the Bill, and the same treatment would not necessarily be appropriate. For instance, for that reason, consideration is being given to the establishment of a separate charitable subsidiary within the commission in order to fulfil the role of a recipient of trading profits and voluntary contributions. As I said earlier, these are complex issues and we are fully seized of the arguments. I hope that with that assurance, the noble Baroness will, for the moment, be prepared to withdraw the amendment.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Birk moved Amendment No. 118B:

Page 57, line 20, at end insert—

("Finance Act 1975 (c. 7)

4. In paragraph 12(1) of Schedule 6 to the Finance Act 1975 (capital transfer tax exemptions) before the entry relating to the National Gallery there shall be inserted "the Commission for Ancient Monuments and Historic Buildings for England".").

The noble Baroness said: On a previous occasion, a similar amendment to that which I am now moving—it was then No. 92A—was moved and the noble Earl, Lord Avon, said that the Government proposed to bring forward an appropriate amendment on Report. He said at that time that it would have been nice if he could have accepted the amendment then tabled, but he had been told there was a technical problem with it; the remarks he made then are to be found in Hansard for 16th December.

The technical problem to which the noble Earl then referred may now have been put right in the amendment I am moving, in view of the fact that it begins: In paragraph 12(1) of Schedule 6 to the", and so on, which the previous amendment did not state. I thought that if we could get this small amendment right now, that would save the Government taking the matter back, with so much else of what they have promised to reconsider, and the matter could be settled now, instead of having to be raised on Report. Thus, if the amendment is now technically correct, perhaps the noble Earl can accept it. I beg to move.

The Earl of Avon

I appreciate the concern of the noble Baroness on this issue, and I confess that it is concerning me too. The amendment raises some difficult questions in terms of the nature of the commission's position in regard to taxation issues, which, as the noble Baroness knows, we are taking under our wing. Some such matters are easier than others—for example, the question of relief from capital transfer tax.

It would have been nice if I could have accepted the amendment, but there is, I understand, a technical point in relation to its place in the schedule, and that is what is exercising us at the moment. So perhaps the noble Baroness can leave it with me, and I am afraid that we shall have to have another look at it.

Baroness Birk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5, as amended, agreed to.

Schedule 6 [Repeals]:

[Amendments Nos. 119 and 120 not moved.]

Lord Strabolgi moved Amendment No. 121: Page 57, line 31, column 3, leave out ("and in subsection (3) the words from "a draft" to the end").

The noble Lord said: This amendment is consequential on Amendment No. 117, which the noble Earl accepted. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 122: Page 57, line 42, column 3, at end insert— ("In section 10B(11), the definition of "the appropriate advisory Council".").

The noble Earl said: I spoke to this amendment with Amendment No. 105. I beg to move.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Clauses 34 and 35 agreed to.

Clause 36 [Short title]:

The Deputy Chairman of Committees

As I understand it, Amendments Nos. 122A and 124 are alternatives, and perhaps they can be discussed together.

Lord Strabolgi moved Amendment No. 122A: Page 18, line 19, leave out ("National").

The noble Lord said: I put down the amendment for the sake of accuracy, because to me it does not seem to be right to call the Bill the "National Heritage Bill" when it excludes Scotland. Clause 35, which your Lordships' Committee has just passed, makes quite clear that the Bill does not extend to Scotland, except so far as it amends or repeals

certain enactments. But it does not extend to Scotland, and it seems to me quite wrong to call a Bill "National"when it does not extend to the whole of the United Kingdom. I beg to move.

Lord Airedale

I should like to support the amendment. I thought that I had better look up the word "nation" in the Shorter Oxford English Dictionary, but the trouble with lexicographers is that they always seem to give a variety of meanings, and one can pick and choose whichever meaning one likes. However, if one accepts the definition that a nation is a people, organised as a separate political state", then it seems to me that an Act of Parliament which does not apply to Scotland cannot be called "National".

I have been invited to speak to my amendment, No. 124, and I hope that I may, very briefly. I put it down because it seemed to me that people might be confused in their minds between "heritage" and "inheritance", and that it might be a good idea to get away from the word "heritage" altogether. So I have put down my amendment to entitle the Bill the "Museums etc. Bill". In support of it, I would simply say that it would indeed make a short Title, and the Bill is overwhelmingly about museums. One cannot usually get into a Short Title everything with which a Bill deals. If your Lordships think that the word "etc." in a Title is untidy, I can only say that there are precedents. I opened at random the index to Halsbury's Statutes, and I came across the Naval and Military War Pensions Etc. Act, and the Naval Billeting Etc. Act".

Lord Jenkins of Putney

I find myself unattracted by the alternative preferred by my noble friend and the noble Lord, Lord Airedale. It seems to me that the Scots would greatly resent the notion—I think, for example, of the Scottish National Party—that the Scottish nation embraced England. I do not know why we should presume to suppose that the English nation embraces the Scots. I rather think they would reject our embrace, so I do not think that that is much of a good idea. The "Museums etc. Bill" is very unattractive. It seems to me that in order accurately to describe the Bill we should call it "The Dog's Dinner".

Lord Mottistone

I think there is a precedent for what is currently the Title. I happen to be associated with the National Society for the Prevention of Cruelty to Children, which has a parallel body in Scotland called the Royal Scottish Society for the Prevention of Cruelty to Children. They clearly accept the fact that the society which represents England and Wales is known as the "National Society". I am sure that there are other examples. This happens to be in my personal knowledge.

I also slightly resent, on behalf of my wife, the fact that all the protests have been about Scotland and not about the fact that Northern Ireland, in the preceding clause of this Bill, is also left out. Northern Ireland does not seem to be given thought from the other side of the Committee as being people who might be equally insulted. I should have thought that the whole of this is a load of nonsense.

Lord Kennet

I agree with the last point and, as usual, when you have a load of nonsense it is best not to change the original Title of the load of nonsense. Surely, common usage says that there are three nations in Britain: the English, the Scottish and the Welsh. This one covers one of the three nations, and so it is quite correct to call it the National Heritage Bill.

The Earl of Avon

I think that I really ought to have rested my case on that excellent expose by the noble Lord, Lord Kennet. These amendments might enjoy a measure of support to avoid any confusion arising between the Title of this Bill and the National Heritage Act 1980. The creation of a series of legislation under a generic heading is a common device, and the Government do not think that such confusion is likely to occur.

The proposed revisions to the Title we do not think are satisfactory. The first does not take proper account of Clause 35, which makes reference to the amendment and repeal of enactments which make reference, in turn, to Scotland and Northern Ireland—which will please my noble friend Lord Mottistone. To limit the Short Title in this way incorrectly suggests that other parts of the United Kingdom are not affected by it. The second abbreviates the Title to such an extent that the Government consider it to be seriously misleading. It would not be appropriate to rest the Short Title on the museums alone. The trustee institutions covered by the Bill are London-based, but we consider them national institutions. It would be wrong to imply they had relevance only to England or—to mention it before we close—Wales. I hope the noble Lords will be prepared to withdraw their amendments.

Lord Strabolgi

I am grateful to those noble Lords who took part in the debate for their various suggestions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 123 had been withdrawn from the Marshalled List.]

[Amendment No. 124 not moved.]

Clause 36 agreed to.

In the Title:

Lord Strabolgi

had given notice of his intention to move Amendment No. 125: Line 3, after ("Gardens,") insert ("Kew,"). The noble Lord said: We had a debate about this at an earlier stage of the Bill. I understand that the Government have given an assurance that they will consider "the Royal Botanic Gardens", making clear that these are not the only Royal Botanic Gardens in the United Kingdom. With that assurance, I do not propose to move the amendment.

House resumed: Bill reported with the amendments.