§ 3.21 p.m.
§ Lord Denham
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Antiquities Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Lord Abinger
My Lords, I beg to move that this Bill be now read a second time. The purpose of this short Bill is to give a more permanent protection to those small antiquities which, from time to time, are found in the ground or elsewhere, and it seeks to do so by amending the law of treasure trove. These small antiquities are often of historic importance, of scientific importance, or of artistic importance, and sometimes they are all three. They include rather infrequently objects made of gold or silver, but more often made of other metals or of clay, stone, wood or glass; they include jewellery and ornaments, ancient tools, weapons and household utensils, ceramics and mosaics, manuscripts, deeds and scrolls, together with many other ancient artefacts. With the exception of those objects made substantially of gold or silver, which receive a rather tenuous protection under the law of treasure trove, these antiquities, it seems, receive no permanent protection in law at all.
Although they might rightly be considered an important part of the national archaeological heritage, as the law now stands they would generally belong to the owner of the ground or the building in which they are found, although I must say that the law of finders is rather complicated. It is, of course, true that some of these antiquities find their way into our museums through the generosity and public spirit of their owners; but many do not—we know not what proportion and we know not how important. They can be neglected, 17 displaced, damaged, destroyed or disposed of abroad as an uninterested owner chooses. This is a matter of great and increasing concern to archaeological opinion in the country, particularly in view of the increasing popularity of the hobby of treasure hunting with metal detectors.
I would refer here briefly to the Ancient Monuments and Archaeological Areas (Protection) Act, 1979. This Act was greatly welcomed by archaeologists, but it gives no permanent protection to antiquities. Under the Act, the Secretary of State or certain local authorities may designate areas of archaeological importance. They may then, if they choose, authorise a competent examination of any antiquities found on the site, but that is all. Under the Act, examination is authorised; protection is not given.
A further weakness of the Act, in my view, is that designated areas seem to be very few and likely to remain very few. Neither the Secretary of State nor a local authority can authorise even an examination of the larger number of antiquities found outside designated areas.
I would suggest that this lack of permanent protection of small antiquities for our national heritage is a serious omission in the whole corpus of our conservation law. The public is conservation-minded now and, quite rightly, in recent years Parliament has reflected this public concern by passing a whole series of conservation measures. We have the very detailed Town and Country Planning Acts; we have legislation to protect flora and fauna, and to protect ancient monuments and historic buildings. Areas of outstanding natural beauty and sites of special scientific interest can be protected and, among other things, so can individual trees and underwater wrecks at sea in coastal waters. But there is nothing to protect small antiquities.
I do not know what the noble Earl, Lord Avon, who is speaking for the Government in this debate, will say. I would emphasise though that there is plenty of evidence that Her Majesty's Government, their advisers and the legal profession have for a long time been aware of this rather unsatisfactory position. I do not want to go back too far to give illustrations, but for a start I would remind the House that our country was represented at a UNESCO conference in New Delhi in 1956 where it was recommended and accepted that member states should apply certain principles of legislation to protect their archaeological heritage. Our own delegates agreed. Although resolutions passed at UNESCO general assemblies are certainly not binding on member states, it was a matter of great disappointment to the archaeological profession in this country that Her Majesty's Government took no notice at all of the resolution.
Rather later, in 1971, the Brodrick Committee presented its report to Parliament. His Honour Judge Brodrick, has been chairman of a committee appointed by the Government to review the powers of coroners. Among other things, his report recommended that coroners should continue to carry out their functions in regard to treasure trove:until comprehensive legislation is introduced to deal with the whole question of the protection of antiquities".The Brodrick Report came out 11 years ago, and we have not seen very much since. Again, I should like 18 to quote Mr. Justice Dillon in a recent High Court case concerning treasure trove, Attorney-General for the Duchy of Lancaster v. Overton Farms Ltd. Mr. Justice Dillon commented during the hearing of the case:the position in which the preservation of recently discovered antiquities depends on a prerogative"—that is, the Crown's prerogative in relation to treasure trove—which originated for a quite different purpose is not satisfactory".He then went on to describe the topic as one which could well merit the attention of Parliament for the adoption of criteria in keeping with modern thinking and the ways of modern life. In introducing this Bill, I am endeavouring to solicit just that.
Before referring to the Bill in detail, I should like to say a few words about treasure trove, which has been described by a distinguishing jurist writing in a recent issue of the Modern Law Review, as being an instrument of almost pitiable inadequacy for archaeological preservation. I feel sure that your Lordships will be familiar with treasure trove, so I need not say very much, but the current interpretation of treasure trove appears to me to be that objects discovered in the ground or elsewhere and which have no known owner are deemed to be treasure trove, first, if they are substantially made of gold or silver, and, in addition, if it is adjudged that their original owner hid them with a view to eventual recovery and did not just lose or abandon them. If deemed treasure trove the objects of course become Crown property and receive the permanent protection forthwith.
That is about all there is to say about treasure trove and it does not get us very far towards protecting antiquities. It is part of the common law of England going right back to Anglo-Saxon times. In those days it was not a conservation measure at all; it was a sort of fiscal penalty to discourage the hoarding or secreting of wealth. And one must really ask whether a measure which may have suited King Alfred the Great or King Ethelred the Unready very well is appropriate for the more sophisticated times in which we live.
It is our coroners, sitting with a jury, who have to decide whether an object is treasure trove or not. In particular they have to decide what the lawyers call the animus revertendi; whether the original owner had intended to recover his possession or whether he had just lost it. Well, I know that our coroners are conscientious, hard-working officers of the Crown, but it is really asking too much of them to be able to give guidance to a jury on the intentions of the owner of an object who may have lived 1,000, 2,000 or 3,000 years ago.
This Bill therefore seeks to amend treasure trove. The operative clauses are Clauses 1 and 3. Subsection (2) of Clause 1 would widen the categories of object that can be deemed treasure trove and therefore Crown property, and therefore in receipt of permanent protection if thought fit. Subsection (2) paragraph (a) I think speaks for itself. Paragraph (b) would extend treasure trove to objects which happen to lie with other objects deemed treasure trove under this subsection of the Bill. To give an example of this: if a hoard of coins is discovered, some made of gold and some of 19 bronze, as the law stands at the moment only the gold coins could qualify as treasure trove perhaps, while under this clause of the Bill all the coins would, and so would their container, and so perhaps would any objects lying very close to them. We have to bear in mind that intrinsic worth has really got nothing to do with archaeological importance.
Paragraph (c) of subsection (2) delegates powers to the Secretary of State. It is not thought that he would use such power frequently, lightly, or retrospectively. But it is worth mentioning that although under Scottish law the Secretary of State has not got this power, another body has, and I confess I do not quite know what that body is. I think it is called the Crown Commissioners. That may be a Scottish office. But that has worked perfectly well in Scotland for many years. Treasure trove can be widened there at the discretion of the Crown Office to take in all sorts of other artefacts that arc not gold or silver. Clause 1(3) abolishes the animus revertendi. And I have suggested already that it is a bit of a nonsense to have to establish the original owner's intention.
I would attach importance to Clause 3 of the Bill. At the moment if interesting antiquities are found at other than a designated site, there seems to be nothing in law to prevent the owner, or people authorised by him, digging feverishly, unskilfully and roughly for further objects, whereas archaeological science demands a minimum of disturbance by unskilled excavators. If a site is not skilfully excavated, great and lasting damage can occur to it and the contents in it. This clause seeks to prevent such damage being done.
The Bill does not seek to be a basis of a statute of antiquities such as exists, I would say, in most modern states now, because I think that would be beyond the scope of a Private Member's Bill. Nor is it, I think, a radical Bill in any way. But it tries to go far enough to meet the wishes of contemporary archaeological opinion. It is worth noting that our former Colonial Office initiated, or endorsed, many good antiquities Bills for the territories for which it was responsible. Very often—not always—it did it by a simple amendment to the British law of treasure trove. Malta and Cyprus, for instance, had excellent antiquities statutes; so did the dependency of Aden and the Protectorate of Tanganyika. I find that Sarawak did, too. And the best of all, I think, was the former Indian Empire's statute dating back as long ago as 1878. They were often based on a simple extension of treasure trove.
Coming nearer home, and of no concern to the Colonial Office, I find that Northern Ireland and the Isle of Man have considerably better legislation in this field than England does. I find that Scotland has much better legislation in this respect. And, for aught I know, the Bailiwick of Guernsey or the Island of Sark may do so. Therefore, I would suggest that it is surely time for consideration to be given for the better protection of antiquities in England and Wales too.
I can say that this Bill has the support of the British Museum—possibly a qualified support—and I think that my noble friend Lord Windlesham will have a little more to say about this when he speaks. I can say that the Bill has the wholehearted support of the Council for British Archaeology, which is quite one 20 of the most respected representative bodies in the country of archaeological opinion. In commending this Bill to your Lordships, I very much hope that you feel that it merits your support too, and that you will give it a Second Reading. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time— (Lord Abinger.)
§ 3.38 p.m.
§ Baroness Birk
My Lords, I think that we are all grateful to the noble Lord, Lord Abinger, for raising this matter once again. This time I think it is probably an improvement on the last Bill, which was intended to do away with treasure trove, because I do not think that at the moment any Government of either side would wear that. This is a difficult subject because the whole concept of treasure trove is wreathed in a romantic aura of ancient history. The words conjure up romance, adventure and also of course financial advantage.
Governments have left the law as it is for hundreds of years—in fact, for more years than the centuries of this country. It goes back to quite primitive times and is of ancient origin. Nevertheless, it comes into the category to which Governments prefer to turn a blind eye. In 1979 the Ancient Monuments and Archaeological Areas Act referred to by the noble Lord, Lord Abinger, was passed. I was the Minister at the Department of the Environment during the run-up to that when the consultation paper was put out and the Bill was drafted.
I do not think it is giving away any secrets to say that it really was very hard to get that much-needed Bill into the legislative programme. All Governments have other matters which they think are of far more importance and far more urgency than anything to do with conservation, the arts, or archaeology, so they come far down the list. It is also perfectly true that, as we all know, you have to make certain compromises otherwise you are going to lose the whole Bill. In the end we were pleased to get what we did.
The noble Lord, Lord Abinger, referred to Section 42, which deals with the restriction on metal detectors near scheduled monuments and in archaeological areas of special importance. I quote from the consultation paper which was issued in 1977 and was the precursor to the Act:The principal Act of 1913 … a different age with a different climate of opinion—so it is not surprising that in spite of amendments in 1931 and 1953, the framework needs modernisation to cope with new situations and to accord with present-day legislative and administrative practice".That referred to the Ancient Monuments and Archaeological Areas Bill, as it was then, and finally we got something brought forward. Now we are talking about treasure trove and, although I would be the first to agree that it would he preferable if a Bill of this sort were introduced by the Government, I believe that to be so highly unlikely that, after a great deal of consideration, I find myself very much in support of this Bill. It is true that there may be some points which may need to be amended in Committee, but that does not alter the main principle of the Bill.
To give an example of the way things work at the moment: probably the finest treasure this country will ever see was the hoard of the Sutton Hoo ship 21 burial, which was found in 1939. It represented the superb possessions of a high king of the Anglo-Saxon heptarchy—the overlord of the English kingdoms. It included gold, silver, jewellery, arms and regalia. In terms of artistic importance as well as financial value, the hoard was absolutely priceless and undoubtedly it was a national treasure of great pre-eminence; and it was unthinkable that such a treasure should be anywhere but in the British Museum. Incredibly, however, there was no process of law—there was not then and there is not now—which could protect it and secure it for the nation. Treasure trove was not applicable because it was not a case of the goods having been hidden; that was found by the coroner and his jury. Therefore the Sutton Hoo treasure was free to be sold off piecemeal; and the same situation could arise today if there were another hoard of comparable importance. That case demonstrates devastatingly the inadequacy of treasure trove for archaeological purposes. Happily, there was a good ending to that case; the treasure was preserved for the nation because of the generosity of the woman to whom it would have belonged, who was extremely public-spirited and who, incidentally, refused an honour which was offered to her by Winston Churchill. Purely by chance there-fore, due to one woman's generosity, that tremendous hoard of treasures found its way into the British Museum.
By any test, the present position over treasure trove can be shown to be defective and in urgent need of reform. Today everything is different compared with the time when distinctions were first made between objects hidden away for retrieval later and those which were lost or abandoned. How can that have any relevance whatever to our lives today, bearing in mind our present archaeological activities, our economic and social life and the activities of our whole community? It makes absolute nonsense, especially as the coroner and his jury are very often left to make some sort of inspired "guesstimate", almost like tossing a coin, about whether an article should go into the category of treasure trove.
There is a strong groundswell now for change, and it has been increasing certainly since the passage of the 1979 Act: that measure activated thought in a great many other areas. One sees in the academic world that teachers of law are mounting increasing criticism of the present treasure trove law and many judges are extremely uneasy about the position. The noble Lord, Lord Abinger, referred to the Overton case and to what Mr. Justice Dillon said. That case went to the Court of Appeal, where the Master of the Rolls, Lord Denning, said—and the judges sitting with him agreed—that he had to go back to Sir Edward Coke's interpretation of treasure trove and, reading that judgment, one can see that he had with great reluctance to go back to the basic origin of it, in that it had to be objects of either gold or silver, but no other alloys. I think one would find that many Law Lords would be in favour of a change in the law.
The Bill would not overturn the present law by doing away with treasure trove. Nor is it such a devastatingly revolutionary Bill. It simply aims to complete the circle in respect of gold and silver objects; it would mean that we should not have the present highly artificial and absurd division between articles which have been hidden for retrieval and those which 22 have been lost or abandoned. As the noble Lord, Lord Abinger, pointed out, it would also allow for alloys to be included as well, and that makes great sense.
It may be said—some have said it—that the Bill would be a weapon used against treasure hunters with their metal detectors. In fact, if one reads the measure carefully—and it has the advantage of being a short, simple and, in my view, extremely well drafted Bill—it is clear that it has no part in any campaign against treasure hunters. If anything, it could be argued the other way, that it favours treasure hunters by increasing the amount of treasure trove material. In any event, it is about time we were realistic about the whole matter, particularly as more and more metal detectors are used. At this time, when there are more treasure hunters, we should get things under some sort of proper control so that we do not lose the great many treasures which we are still losing today.
It is possible—indeed, it is highly probable—that there will be protests from the Treasury, in that more will have to be paid because the museums will be forced to buy a great many objects which would not otherwise have been treasure trove, so that they will be faced with large expenditure in respect of which they will go to the Treasury. In fact, there will be no compulsion on anybody to buy anything. If, for example, the British Museum has an article which is very similar to or is a better example of a particular antiquity, it does not have to buy it. Nobody would be forcing it to buy the object, and it would go back to the finder and, as there is now, there would be a reward.
The Bill may also be criticised for being disadvantageous to landowners, yet I understand that the National Union of Farmers supports the measure. However, many landowners feel they are losing out under the present system, so the answer to that criticism would be to revise the system of rewards so as to recognise the claim of landowners and, if necessary, there could be a share-out between the finder and the landowner, but that is a matter of prerogative which the Bill leaves unaffected.
We may have some discussion about the penalties that are proposed. Clause 4(2) creates an absolute offence, and there may be differences of opinion about that. I have always been taught that ignorance of the law is no defence, and we have a number of other absolute offences in our law. I would only comment that in the magistrates' courts we can give an absolute discharge if we think the circumstances merit that.
Another point which will probably be raised by noble Lords relates to reporting a find not later than 48 hours afterwards. This is a difficult matter. Perhaps there is a case for extending the period to seven days, but I am slightly worried about it. I believe that the majority of people who find the kind of objects with which the Bill is concerned know all about such matters and are fairly professional. I do not think that the period should be long enough to enable them to "flog" the objects—to put it crudely—with the result that the finds might be abroad before there is a chance to declare them as treasure trove.
Previously the Government were able to shelter behind the misgivings of the British Museum. 23 It is perfectly true that the British Museum had misgivings—I am glad that the noble Lord, Lord Windlesham, who is a trustee of the museum, is to speak particularly over the idea of abolishing the concept of treasure trove. However, I understand that in 1974 the trustees agreed that the concept of treasure trove should be retained, but amended, and I believe that with certain reservations, which I do not think are really major, the trustees are happy with the Bill.
Finally, in the last few years we have been more conscious of our national heritage than we have been for many years. We become very worried, letters fly here and there, and there are demonstrations and meetings if pictures, furniture or other objects are to be sent abroad. Yet we tolerate a situation where not only is there the absurd anachronistic conumdrum of "hidden, lost or abandoned ", but, as the noble Lord, Lord Abinger, pointed out, since the law applies only to gold and silver, no bronze object, no stone object (such as the Willendorf Venus) no iron object (such as the Sutton Hoo chain) no bone or ivory (such as those Norse chessmen in the British Museum) could be classed as treasure trove under present legislation. Above all, there is pottery. Old pottery plays such an enormous part in the heritage of every country. It seems absolutely wrong to exclude such objects and it is becoming archaeologically irresponsible to let the situation remain as it is.
I doubt whether the Minister will be able to give an undertaking that the Government will bring in a Bill. This is not a party point; the situation is very difficult and I do not think that he would get very far if he were to say to the Government, "I should like to have a nice little Bill on treasure trove". Therefore we should at least go ahead with the Bill of the noble Lord, Lord Abinger, and I believe that the least the Government can do is to view it with a positive benevolence.
§ 3.53 p.m.
§ Lord Windlesham
My Lords, as the mover of the Bill has indicated, I intervene in the debate in my capacity as a trustee of the British Museum. I do so with some hesitation because sitting next to me on this Bench is the former chairman of the trustees, Lord Eccles, who had a far longer association with the British Museum than I have had the good fortune to have. The trustees have considered this Bill and I have been asked to speak today on their behalf. As the noble Baroness, Lady Birk, has just remarked, the British Museum declined to support a previous Private Member's Bill, also sponsored by the noble Lord, Lord Abinger, largely because it abolished the concept of treasure trove and made no reference to the system of rewards which in our view is essential to prevent the concealment of finds. It also seemed unlikely that the role of the coroner in establishing the facts of a find would survive had that Bill become law.
The present Bill as now drafted meets those objections. It retains and redefines the concept of treasure trove, which was the approach preferred by the British Museum trustees when they considered the state of treasure trove law in 1974 and 1975. Accordingly, the Bill has the support of the trustees of the British 24 Museum, as well as of the director and the senior staff who are directly concerned.
Having said that with the authority of the trustees, let me add one or two personal comments on my own account, which might or might not be shared by my colleagues. Strange and archaic as it might appear to be, the ancient Crown prerogative of treasure trove has undeniably been of considerable benefit to museum collections, the national collections and increasingly to local museums as well. In addition, it has led to greater knowledge about the way in which people lived in the past.
To my mind the Bill has two particular virtues, one of which is highly topical in view of the decision in the Court of Appeal relating to the Coleby find, which has already been mentioned. Part of the judgment related to the proportion of gold or silver which needed to be present in gold or silver objects, usually coins, if they were to be classed as treasure trove. The Court of Appeal ruled that the gold or silver content should be "substantial ", but stated that no percentage was to be cited.
My Lords, problems with monetary systems are far from a new manifestation. On many occasions in the past the currency has been progressively debased. For example, in the Roman coinage of the Central Empire and the Gallic Empire in the third century AD the silver content fell as low as 1 per cent., while in Tudor England the lowest legal definition of silver coins in the middle of the 16th century was between 23 and 25 per cent. These coins have traditionally been regarded as silver and have been collected and studied as such. But would coroners' courts find such low contents to be "substantial "? Some coins in a hoard might be found to come up to the required level, with a substantial content of gold or silver, whereas other coins in the same find might be found to fall below the level.
At the very least the Court's ruling has held out the prospect of the verdicts of coroners' juries varying from case to case, some of them no doubt open to challenge on appeal. This Bill would overcome the problem, since Clause 1 states thatTreasure trove shall comprise not only gold and silver but also any object which is … made of any alloy containing gold or silver".The second advantage of the Bill lies in the extension of treasure trove from solely gold or silver objects, as at present, to the containers in which they are found, together with any adjacent objects. To archaeologists or historians the containers or adjacent objects might be as interesting as the gold or silver objects themselves. Moreover, it is important that a find should be described and studied in its total context, wherever possible with the co-operation of local archaeological units or museums in the area. The widening of the definition of treasure trove in the Bill should help to keep hoards together rather than split them up, which happens when the gold or silver articles in a reported find are declared to be treasure trove, with the non-silver or gold elements remaining the property of the landowner.
In preparing for this debate I made some inquiries into the incidence of reported treasure trove in order to get some idea of the scale of the activity which we are debating today. The Treasury Reviewing Committee considered 51 finds over a four-year period from 1977 to 1981. This is not, however, an inclusive list since 25 it excludes finds in the Duchy of Cornwall, the Duchy of Lancaster and the City of London, so the total number would be somewhat larger. But it does give an indication of the approximate frequency of reported finds.
A further aspect worth having in our minds as we discuss this subject is that, contrary to popular mythology, the sums paid out as rewards, representing, as they do, the full market value, are more often a few hundred pounds rather than the occasional much higher figure which attracts the headlines.
So, my Lords, this Bill, while it seeks to retain a well-established procedure which has endured for many centuries, seeks to modify it and strengthen it in order to meet modern conditions. As the mover reminded us in his opening speech, this is in line with comments made recently from the bench in the High Court. As such, I believe the Bill deserves our support, and I hope it receives a Second Reading.
§ 4.3 p.m.
§ Lord Adeane
My Lords, in thanking the noble Lord, Lord Abinger, for introducing his Bill I must first acknowledge an interest in it myself, through the Royal Commission on Historical Monuments (England), of which I am chairman. We are mainly concerned with recording—recording the archaeological and architectural remains of this country—and it is on this aspect, which has already been mentioned by other noble Lords, that I propose to concentrate rather briefly.
In this connection, we shall be greatly helped by Clause 3 of the noble Lord's Bill. This makes it obligatory for the finder of any object covered by Clause 1 to report it at once to the police or to any other appropriate authority while leaving the object itself alone and the place of its discovery undisturbed. Such finds are numerous nowadays, mainly because of the widespread use of metal detectors. I think we should not be too dog-in-the-manger about this. Many people get a lot of interest and amusement out of the use of metal detectors, and provided they remain within the law they perhaps do not do very much harm. As the noble Baroness, Lady Birk, has already mentioned, it is in their interests as well as in every-body else's interests that the law on these matters should be a great deal more closely defined than it is at the moment.
As to the objects themselves, whether they are of intrinsic value or not is really beside the point so far as the historian is concerned. But—and here I come to our main interest—if they are reported at once they can be recorded and related to sites which are already known and probably appear in maps, or at any rate on air photographs. As such they may add greatly to the public knowledge of our ancestors and their life. If they are not promptly recorded, their provenance will probably be lost or confused and their discovery will really be worthless from an archaeological point of view, or very nearly so.
I do not want to detain your Lordships longer. Other noble Lords have added many useful points to the consideration of this Bill, but I believe this particular matter that I have raised to be important from the point of view of proper record and public education. 26 I give all my support to the Second Reading of the Bill.
§ 4.6 p.m.
§ Baroness White
My Lords, I wish very briefly to welcome this Bill most warmly, and to thank the noble Lord, Lord Abinger, for introducing it, on behalf of those of us in the Principality of Wales who are interested in these matters. We have of course included in the Bill a reference to our National Museum of Wales in Cardiff. It is not as ancient or as grand as the British Museum, but it has nevertheless a number of exhibits of very considerable distinction. I have spoken recently with the director of our National Museum and with the Keeper of Antiquities, and both of them most warmly welcome the proposals which are included in the Bill which is before us this afternoon.
I do not wish to weary your Lordships by going into detail—previous speakers have covered it most competently already—but it might perhaps be interesting to give two examples of the difficulty experienced with the current law of treasure trove. Only last Wednesday afternoon, your Lordships might be interested to learn, a telephone call was received at the National Museum in Cardiff from the local museum in Hereford, who very kindly observed the privileges of the National Museum of Wales to be concerned with archaeological finds within the Principality.
Two gold bracelets had been found near Presteigne in Radnorshire, and the Keeper of Antiquities explained to me that he thought they probably had enough gold, under the present law, to qualify, but that had it been one bracelet he would have been in the greatest possible difficulty in claiming that it was treasure trove. He was greatly heartened that there were two bracelets, because this would be very helpful before the coroner's court in persuading the coroner that these two bracelets had probably been hidden with a view to ultimate retrieval, whereas had it been but one the chances were that the coroner would have found it very difficult to reach a favourable verdict.
The Keeper of Antiquities also said that he was delighted with the provision in the Bill that objects subject to treasure trove provisions could now be of an alloy containing gold or silver, because again he produced a most convincing example of a fairly recent experience. In 1975, in Cardiff itself, a hoard of Roman coins of, I must admit, very poor quality was discovered—probably in the period referred to by the noble Lord, Lord Windlesham, in his speech. Nevertheless, they were allowed to be treasure trove and were duly consigned to the museum. A little later what appeared to be the other half of this hoard, so to say, was discovered. It was of the game period, and was almost adjacent. But in the meantime the Dillon judgment had been confirmed by the Master of the Rolls, the noble and learned Lord, Lord Denning, and the other part of the hoard was disallowed because the quality was inferior.
So one has two admirable examples from the Principality of why the current law needs to be amended in the respects described in this Bill. I have no doubt that the other provisions in the Bill will be equally valuable, though I would have thought that there might be one or two arguments in Committee about 27 the drafting of one or two of the provisions. So far as treasure trove at least is concerned, this Bill is very warmly to be welcomed and I am sure that we shall be gravely disappointed if the noble Lord, Lord Avon, who is to reply, is anything other than encouraging to its progress.
§ 4.11 p.m.
§ Viscount Hanworth
My Lords, this is a very moderate Bill and it is not making any major reforms, but it is of enormous importance to archaeologists. That point has already been made today. Treasure trove, which they may rely on for getting evidence in anything that is, for example, buried, only helps to a very limited extent because the archaeologist is not primarily concerned with, let us say, the gold coins: he is just as interested if they are not made of gold, and he might be just as interested in the container, because what he is trying to do is get the evidence for reconstruction.
It is worth looking at the law as it is, because, quite apart from the archaeological point of view, I think that it is clear that the law, which is derived from at least a thousand years ago, is completely out of date and in many ways really a nonsense. Treasure trove belongs to the Crown if and only if it is gold or silver and is hidden with a view to recovery—not simply lost—and there is no owner. One can see, my Lords, that it is very difficult to find this out at a long distance in time, and so the law has made all sorts of presumptions which are considered in the coroner's court. For example, if a single item, it is presumed to be just lost. If buried with the dead, it is presumed that there was no intention of recovery. if there is a low content of gold or silver it is not treasure trove. A coroner's court is not in this way doing a very useful job, and the law by any standards is not very satisfactory. I would emphasise that the Bill in no way alters the present system of rewards.
Finally, what we are worried about of course is more treasure coming to light because of the metal detectors which are used today. This gives a far greater urgency to this Bill than perhaps would have been the case 10 years ago. So I very much hope that at last something will be done and the Government will support this Bill.
§ 4.13 p.m.
§ Viscount Monckton of Brenchley
My Lords, I speak purely personally—on behalf of nobody and no one other than myself. As many of you know, I spend a considerable time at the bottom or half way down trenches in the earth excavating Iron Age and Romano-British items which I am lucky to have on my own land. I therefore welcome this Bill enormously. I am grateful to my noble friend Lord Abinger for having introduced it.
I was a little worried to hear from some speakers about the use of metal detectors. I always fear those. I am quite sure that sometimes they can be of use to experts working on spoil heaps or even locating before digging; but their use alone I believe to be terrifyingly dangerous. Just think of the Saxon warriors found at Lenham, in Kent, during the war, my Lords. A metal detector would have found the sword and belt stud, but nothing else. If the person with a detector 28 had dug down he would not have worried about the bones all he would want would be the precious jewellery. I hope therefore that we can try to forget this part of it. It is not in the Bill, I am glad to say.
The only worry that I have is on Clause 3, which the noble Baroness, Lady Birk, mentioned. This is the requirement to report finds not later than 48 hours following discovery. I do not know whether that is sufficient time for anyone to declare what they have found or indeed to know what they have found. I often do not know for a week what I have found. I put the item in a plastic bag, with the level mark and the reference number on it, and, when there is a bad day, I wash and mark the finds. Then I ask the experts about anything that I do not know. I cannot accept what the noble Baroness said: that it would give too much time for somebody who is going to sell a gold ring or wristlet. I do not think there is very much in the business of selling finds between 48 hours and a perhaps more suitable time of 7 days. It seems too much fair-weather archaeology to me. The rescue archaeologists who work in rain and snow on motorways, and those kinds of projects, probably do not have time to see what they have found.
A few weeks ago, working on the site at home, a small coin came up. I had no idea whether it was gold, silver or bronze; nor did I care. All I wanted to know was whose head was on it, which I could not see. I put the coin in cotton wool, left it for a week and I then gave it to an expert who could preserve it and tell me what it was. It turned out to be fourth century. Everything else he had been digging was first and second century. So it was immediately an extremely interesting piece.
On another field, if there had been a metal detector the person going down would have found a small broken bronze brooch—not very valuable in itself. They would have taken that brooch. They would have left above it a tiny rim of pottery which would have been thrown away. I picked that up and took it. That was fourth century. It was a double proof that there was a fourth century presence in what had otherwise been entirely first and second century.
I wish there could be something to preserve the stones from stone circles which are still buried and therefore not put down as proper sites. Some of your Puritan ancestors, my Lords, destroyed all the stone circles, whereas some of my Catholic ancestors Christianised them and put their churches on what was already holy ground. I do not know how we can do this, because some of those stones are still buried and still to be found and are not yet protected by this Bill. What is so good to see is that other burials—true burials and cremation burials—are dealt with by this Bill. Therefore, my Lords, having spoken for long enough, I fully support this Bill.
§ 4.18 p.m.
§ Lord Fletcher
My Lords, I wish to intervene only very briefly. My excuse for doing so is this: I was a trustee of the British Museum at the time when the earlier Bill was being debated in 1974 and 1975. Therefore I had something to do with that Bill in my capacity as a trustee. As the noble Lord, Lord Windlesham, has said, that Bill did not meet with the approval of the trustees. On the other hand, this 29 present Bill, which I consider a great improvement on the earlier Bill, has the blessing of the trustees from the British Museum—perhaps with one or two minor reservations.
I welcome the Bill and I hope that this House will give a Second Reading. I would, however, observe—as I observed when the earlier Bill was under consideration by the archaeological authorities and Government—that this is a highly difficult subject for legislation. It is always difficult to put into a statute modifications of a law which has hitherto resided in that branch of the law known as the common law. I do not want to weary the House, but I hope that the Minister or his advisers, in considering the draft of the Bill, will bear in mind that in my view, and in the view of those who were concerned in 1974, it seems to call for certain improvements in draftsmanship. I would ask the Minister, who presumably will be speaking for the Home Office and taking the advice of the legal advisers to the Home Office, to refer to a memorandum which I submitted to the Treasury solicitors in 1974 and which was answered by a detailed letter, dated 20th December 1974, sent to me by the then Treasury solicitor, my friend Sir Henry Ware. If the Minister has not had it or wishes to see it, I should be happy to send him a copy of it.
It seems to me that among minor points of draftsmanship that require consideration, perhaps the first is that there is no definition of "treasure trove" in this Bill. There have been attempted definitions in the judicial pronouncements over the centuries but none of them is authentic and I am not sure that any of them is satisfactory. To take one small point, it is assumed, and I assume, that treasure trove applies only to hoards. That may or may not be correct, but I think it is a reasonable assumption that it does not apply to isolated finds of the kind to which the noble Viscount who has just spoken referred. Maybe it ought to do so, maybe not; but it is a matter that requires definition, for, obviously, this Bill affects the finders (whether legitimate finders or not) of isolated objects.
Several noble Lords and, particularly, the noble Baroness, Lady Birk, have referred to the fact that we should not have had the benefit of exhibiting the treasures found at Sutton Hoo if it were not for the fact that the owner of the land, Mrs. Pretty, by her very generous and public-spirited gesture, gave up any rights that she had to the property—the coroner had found that it was not treasure trove—and allowed the British Museum to acquire it. I think that, as the noble Baroness said, that is perhaps a glaring case of the anachronistic nature of the present law as to treasure trove. It is an undoubted fact that it would be of the greatest benefit to archaeology if the present law was improved, either by passing this Bill as it stands or with such amendments as your Lordships' House and the Government think necessary.
However, I do not think that it is entirely true to say that treasure trove, as it has been administered over the centuries, has been a failure. It is easy to point to the Sutton Hoo decision as an extreme case; but there have been numerous cases the other way. Perhaps one of the most important of recent years was the coroner's finding about the very important hoard found at Water Newton, which consisted of a most valuable collection of silver objects inscribed with 30 Christian monograms. I should have thought that that find, declared by the coroner to be treasure trove, was, historically, if not from the archaeological point of view, at least as important as the Sutton Hoo find.
My Lords, I do not want to pursue this. We do not know what the Minister will say. I hope that the House will give a Second Reading to the Bill, and that the Government will listen to what has been said on both sides and consider what improvements can be made in the Bill to enable it to have a speedy passage.
§ 4.23 p.m.
§ Lord Elwyn-Jones
My Lords. I apologise for not putting down my name on the list of speakers. I was engaged in business, if not of the House, of the Privy Council at the beginning of the debate. This has been a debate in support of a Bill which has had overwhelming backing not only unanimously so far from this House but from the great institutions, the great bearers of our national heritage, who are supporting it: the Council for British Archaeology, the Royal Commission on Ancient Monuments and the great museums, the British Museum, and last, but not least, the National Museum of Wales. I have a feeling that if the Minister the noble Earl, Lord Avon, had his own way he, too, would give it his enthusiastic support.
It may be that he will do so; it may be that a number of points will arise. So far in this debate, nothing of substance has been brought forward, but a number of Committee points have been brought forward and this House is well qualified to deal with such matters when they come. In principle, I submit that this Bill ought to be supported. As a matter of law, it is supported. It is common ground that the present state of the law is an anachronism and in some respects—I hate to admit this—the law in this field is "a ass "; and this is an unacceptable position for this House to have to contemplate. I hope therefore that we shall receive from the noble Earl a fair wind for the further progress of this Bill.
§ 4.26 p.m.
§ The Earl of Avon
My Lords, I thought that there was 100 per cent. support for this Bill before the noble and learned Lord got to his feet. It must now be 110 per cent. in favour. It has been a worthwhile discussion this afternoon, with a number of fascinating vignettes thrown in. I am grateful to my noble friend Lord Abinger for his lucid introduction. The noble Lord must be happy both for the interest that has been shown and also the support this afternoon. It is now for me to make some comments on behalf of the Government.
In England and Wales, this Bill would make a fundamental change in the laws of property and in citizens' rights of ownership. The general rule is that the owner of land is entitled to any object, not the property of any known person, which is found under, or attached to, his land. The entitlement of the Crown under the law of treasure trove to finds of gold or silver is an exception to that rule. The Bill would now entitle the Crown, in addition, to finds of objects made of alloys of those metals not currently regarded as treasure trove and objects lying within or adjacent to treasure trove. The Crown would also be entitled to such additional classes of objects as the Secretary of 31 State might later specify by order. I understand that promoters of the Bill have in mind that such an order might specify that treasure trove was to include, for example, all coins found in the ground, regardless of their composition or all such coins more than x years old.
The Bill itself would widen the circumstances in which the owner of land did not own the finds on his property; and those circumstances could subsequently be widened again by order. If the Bill is to secure its objective of getting more finds recorded and available for skilled investigation and display, then it needs to command the support of the people affected. We should not disguise the fact that the Bill proposes a curtailing of centuries-old rights of ownership. I am sure it is wise to acknowledge this fully and openly.
On the other hand, no one claims perfection for the present arrangements. When a find is made, its historical and archaeological value may owe as much to the juxtaposition of items as to their individual qualities. It may make no sense to treat part of the find in one way, and part in another, and, indeed, splitting it up for that purpose may greatly diminish its historical value. The Bill's proposals address this problem. It is a moot point whether solutions should be sought to specific and limited problems by changes to ancient and fundamental rights; but, in the absence of other legislation on antiquities as such, perhaps this is the only way to go about it.
The noble Baroness, Lady Birk, has rightly mentioned the deep thought that was given in 1979 both to possibilities of improving the arrangements for the reporting of finds and to problems about metal detectors. The 1979 Ancient Monuments and Archaeological Areas Act, newly brought into force last October, now makes it an offence to use a metal detector at the site of a scheduled monument or at the site of a monument in the care of the Secretary of State or the local authority without first obtaining prior permission of the Secretary of State. His permission is also required to remove any finds from these sites, and therefore I suggest that sites of national importance are already protected. This Bill would go very much further and would affect all land in England and Wales.
There are a number of specific points that I wanted to make about the Bill's provisions, some of which have already been mentioned. First, it seems clear that the Bill's intention is to leave unchanged the coroner's functions of inquiring into treasure trove and simply change the definition, since the Bill is silent about the matter. If the Bill is meant to change the coroner's functions, it does not in fact do so.
Secondly, I should like to draw attention to Clause 1(2)(c) where the word "contained "has caused some slight confusion. At first glance it can appear to have something to do with the container in which an object is found. For clarity, I would suggest finding a different expression.
Thirdly, the Bill as now drafted would make offenders of a great many people whose activities are entirely proper. Under the provisions of Clause 3, anybody who finds an object as defined and fails to report it, is guilty. He does not have to take it out of the ground—indeed the same clause tells him not to—but it seems 32 that if anybody incidentally uncovers such an object and then covers it up and goes away, he is guilty. The ploughman is guilty if he finds a lump of metal and, not recognising its antiquity, throws it aside and goes on ploughing.
Fourthly, most archaeological finds are made during authorised excavations, which are usually supported by public funds and fully recorded. Clause 3 of this Bill would mean that a trained archaeologist on a dig, perhaps in some remote spot, must go at least every two days to a police station to report all the metallic finds, but he must not lift them meanwhile. I say "all the metallic finds" because it could be impossible to tell the precise composition without prior detailed examination. What the Bill seems to need, to make Clause 3 workable, is wording to allow a defence of reasonable excuse for not complying.
Finally the wording ought to take account of such practicalities as who is supposed to do what, after a find has been reported. I can see that more precise wording might be difficult to frame without leaving loopholes for the unscrupulous—I think I have the noble and learned Lord's agreement—but I am sure that Clause 3 is partly too sweeping and partly too vague to serve as it stands. However, if the House wishes to give the Bill a Second Reading, these are matters which can be ironed out in Committee.
The Government will consider with care what has been said this afternoon. There have been some interesting suggestions from the noble Baroness, Lady Birk, for example, about the reward for landowners and also from the noble Lord, Lord Adeane, about recordings. We shall also have regard to the weight of opinion—and on this, of course, we heard from my noble friend Lord Windlesham, with the support of the British Museum, and from the noble Baroness, Lady White, for the Principality. For the present we do not wish to hinder the Second Reading. The subject involves complicated and difficult considerations, many of them legal, as this afternoon's debate has underlined, and particularly the remarks of the noble Lord, Lord Fletcher, which I much appreciated. I shall certainly look at his letter of 1974. I may say I have been advised by a number of legal departments, but so far on this Bill not the one he mentioned. Having said that, may I say to my noble friend Lord Abinger that the Government, for the time being, wish to keep an open mind on this Bill.
§ Lord Abinger
My Lords, I am, of course, very glad that this Bill seems to have had a generally sympathetic reception and I should like to thank all the speakers who have taken part in this debate. They have made some very good points which, if the Bill goes forward, we could possibly deal with at a later stage.
I confess to being a little disappointed by the reply of the noble Earl, Lord Avon. One point I think he tries to make is that there is some fundamental change involved in the law of property if objects found become, as this Bill proposes, a wider range of objects. But the principle is already established, surely. We have treasure trove now.
There are other things as well. I am not completely familiar with the law on these matters, but I think I am right in saying that mineral rights do not belong to the landowner, and I am absolutely certain that if you are 33 lucky enough to find oil on your land you will not be able to keep it. Also there is the position about ancient monuments, some of which are not relics but are in use. They have this protection, and I would not myself accept that any fundamental change is being proposed. May I say also that I am a farmer and have had a chance to discuss this Bill with my colleagues. I have never myself met a landowner or farmer who takes a narrow, proprietorial interest in antiquities found on his land. There may be some who do but, if so, I think they are wrong to claim proprietorship of part of the national heritage.
Having said that, I would contend that anything I say is really of little importance. The House should take note of what was said by the noble Lord, Lord Windlesham, expressing the view of the British Museum and also of the noble Baroness, Lady White, expressing the view of the National Museum of Wales. They should also heed the noble Lord, Lord Fletcher, who is in fact an ex-trustee of the British Museum and has a great record of service to British archaeology. My noble friend Lord Monckton of Brenchley was a little modest in saying that he spoke for himself, because in fact he is very active in archaeological circles in Kent and may be able to speak for others at least in that part of the country.
As with all private Member's Bills, there is tremendous scope for improving this one. I take note of the comments that have been made and I would thank all the speakers for the valuable comments they have made. The noble Baroness, Lady Birk, made a very wide-ranging and helpful speech, and I have made a note of her points. I would now ask the House to give the Bill a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.