HL Deb 04 March 1982 vol 427 cc1434-44

7.14 p.m.

Lord Abinger

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—[Lord Abinger.]

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Protection of portable antiquities and amendment of treasure trove]:

Lord Abingermoved Amendment No. 1: Page 1, line 9, after ("containing") insert ("an added proportion of").

The noble Lord said: The purpose of this amendment is merely to give a slightly greater precision to the word "alloy". I have been advised by experts that the meaning of the word "alloy" can be open dispute. Many metals contain, quite naturally, traces of gold or silver, but they are not necessarily alloys. It is not the intention of the Bill, rightly or wrongly, to make objects made of base metals with traces of, say, silver in them treasure trove objects per se. It is therefore suggested that these should be more clearly defined by adding the words proposed in the amendment. I beg to move.

Lord Windlesham

I put my name to this amendment and to the sequence of amendments from No. 1 to No. 8 on the Marshalled List, with the exception of Amendment No. 3, as they represent the result of discussion between the mover of the Bill and his advisers and the appropriate authorities at the British Museum. As I said in the debate on Second Reading, I am a trustee of the British Museum and have expressed the views of the trustees and senior staff on this measure. I am able to inform the Committee that this series of amendments, with the exception of No. 3 which emanates from the noble Lord, Lord Digby, has the support of the museum.

I do not think there is any need for me to intervene on each of the amendments. They will be explained by the mover of the Bill or by the noble Baroness, Lady Birk, whose name is also appended to the amendments. Taking the amendments together, I commend them to the Committee and do so wholeheartedly. They represent a conscientious attempt to meet some of the reservations which were expressed, in particular, by the noble Earl who spoke for the Government on Second Reading, and who will be speaking for the Government at the Dispatch Box again in Committee this evening. I have no doubt that the amendments will improve and strengthen the principles that have already been accepted on Second Reading.

The Earl of Avon

The Government welcome this attempt to improve the precision of the new definition. I recognise that most of the amendments tabled by noble Lords and Baronesses—again, with the exception of No. 3—were put down in response to what was said on behalf of the Government on Second Reading. To that extent, of course, we are very happy to accept them.

On Question, amendment agreed to.

Lord Abingermoved Amendment No. 2: Page 1, line 11, leave out ("contained") and insert ("included").

The noble Lord said: This is really a drafting amendment. I am advised that in the context of the wording of paragraph (c), the word "included" is better English than the word "contained" which might be thought to have a physical connotation that it is not meant to have. I beg to move.

On Question, amendment agreed to.

7.20 p.m.

Lord Digbymoved Amendment No. 3: Page 1, line 16, leave out subsection (3).

The noble Lord said: This amendment deletes the words: It shall no longer be necessary to establish that an object was hidden with a view to its recovery". I am not intending to wreck the Bill by this amendment. I have tabled it because I want to ascertain the intention of the promoters of the Bill. I support what I think are the intentions but, in common with many other Bills, I am wondering whether this Bill will achieve the opposite results from those intended.

It seems to me that the whole basis of treasure trove, which stems from the common law, is that it is the hiding, not the abandoning, which gives the Crown right of ownership. Unless hiding is proved, at the moment it is not treasure trove. My reading of subsection (3) is that the alteration removes the requirement to prove the intention of recovery, not the requirement that it should be hidden. I stand to be corrected on that point. If this is so, I suggest that the necessity to prove that it was hidden remains— in which case, an object like the Sutton Hoo boat would still not be covered. If, on the other hand, subsection (3) means that the object no longer has to have been hidden, then I suggest that the whole basis of treasure trove law is removed, in which case surely this Bill is rather meaningless without a full definition of "treasure trove". Without the concept of hiding, the definition of "treasure trove" is so widened that it would include many modern items which have been accidentally lost and which, although possibly valuable, are in no way antiquities.

I believe it is the object of the promoters of the Bill to preserve these antiquities. I am referring to such articles as a modern, silver-plated spoon turned up by a gardener when digging. If one removed the concept of "hidden", surely that would be covered. Does the noble Lord, Lord Abinger, really intend to draw his definition so widely? To sum up, I would ask whether the subsection removes the requirement that the items must have been hidden to be treasure trove. If this is so, is it not necessary to have a full definition of "treasure trove", to avoid articles which are not antiquities being included? I beg to move.

Lord Abinger

I always listen very carefully to what my noble friend Lord Digby says. He is an officer on the executive of a much respected association of which I am a back-bench member and which must be concerned with the Bill; namely, the Country Landowners' Association. I think I can answer the question which my noble friend has raised. This is an antiquities Bill. The objects with which it is concerned must be antiquities. My noble friend instanced a modern silver spoon being found in the garden of a house. An element of treasure trove is that the object, to qualify as treasure trove, must have no known owner. In the case of most modern valuables which turn up the precise owner may not be known, but ownership can be established fairly easily. It does not necessarily have to belong to an individual member of a family, but if a modern spoon turned up, particularly if it had a crest on it, it would belong to the member of the family living in that place at that time—if there was one.

Fundamentally, the Bill is concerned with antiquities. Its very name gives that as a guide. I was a little surprised that in his amendment my noble friend suggested leaving out these words. I should have thought they were the least controversial words in a, I hope, not very controversial Bill. I think it was agreed by many speakers at Second Reading that it is quite impossible in every instance to ask a coroner's jury to establish the motives of the owner of an object if that owner lived a thousand or more years ago. There are cases where a very good guess can be made. If valuables are found in graves, the presumption is that they were not going to be recovered. Coming to more modern times—this happens occasionally—hoards of coins are found in the thatch of cottages. The presumption would then be that they were going to be recovered and that they had been hidden there. There are many instances where it is rather a farce for a coroner's jury to have to sit at all.

I do not know whether I have answered my noble friend. The elements of treasure trove include the fact that the article is not modern. It must be an antique. If my noble friend is unhappy with the explanation which I have given, I should be very happy to discuss with him, or with the organisation for which he may be speaking, whether or not we can reach a compromise at a later stage. However, I hope he will feel that this is not necessary and that landowners in particular will not be losing by the Bill, as drafted—that, if anything, they will be gaining. I should have thought that the extension of treasure trove which the Bill proposes would be of benefit to the landowners.

Lord Digby

Before my noble friend sits down, may I ask him to say whether this means that the requirement that treasure trove should have been hidden will be taken out, or just that "with a view to its recovery" will be taken out?

Lord Abinger

No. Animus revertendi is the legal expression: the intention to return to the hidden object and recover it. Again at Second Reading I think I mentioned that it was a fiscal measure originally: that if in Saxon times, when treasure trove was thought to have originated, people were found hiding away gold or silver, it was assumed that they were up to no good and were trying to avoid taxation or some kind of fiscal commitment. That is why forfeiture came into the case. If they just lost or abandoned a particularly valuable object they were not committing a crime or misdemeanour of any sort.

7.30 p.m.

The Earl of Avon

We can all see what has prompted this amendment and it does in fact address itself to an aspect which has caused the Government some concern. The promoters of the Bill might like to bear in mind what has been said by my noble friend Lord Digby about the definition of the term "treasure trove", because he was asking for a definition of treasure trove rather than of antiquities. This Bill seeks to amend the definition of treasure trove. The present definition is not clear and perhaps needs clarification anyway, quite apart from the purposes of this Bill. It may be for consideration that it would be helpful to see a redefinition of treasure trove as amended by this Bill. To this extent the noble and learned Lord, Lord Elwyn-Jones, who has just returned to his seat, did say at Second Reading that the law in this field is an ass. It might be helpful to have a definition of treasure trove as amended in this Bill.

I should like to speak briefly to Amendment No. 8 because it will save me doing so again, and because I believe it would help with Amendment No. 8 too to have a definition of treasure trove. Amendment No. 8 seeks to change the word "small" to "portable", which we agree is an improvement. Once again, perhaps if one had a definition of treasure trove, it would simplify Amendment No. 8 as well. To some degree, I believe there have also been some doubts in reading Clause 2, which again would be simplified if we had a definition of treasure trove.

Baroness White

While my noble and learned friend is considering the response he might wish to make, could I put in a plea to the Minister? I believe he is aware that in general the Bill has very considerable support in your Lordships' House, and there are situations sometimes when it would be extremely helpful if one of the Government draftsmen could be asked to advise on a matter of this kind. No doubt it is, legally, a tricky one, but the general intention is agreed on all sides; the current law is inappropriate, as we made clear on Second Reading. In practical terms, it is extremely difficult to implement the present law in any way satisfactorily.

I would have thought it would be immensely appreciated by all those concerned, including the two national museums, if we could have the support of the Government in trying to work out what is admittedly a legal conundrum in such a way that we have a workable solution or definition. Otherwise we might land ourselves in an even more difficult and absurd situation than we enjoy now. I wonder, would the noble Lord the Minister consider this to be a suitable and appropriate occasion, with a small Bill that is nevertheless of importance to us, on which to use all the best means available to us to sort out this legal problem?

Lord Windlesham

This Bill has already received considerable legal scrutiny. The noble Lord who has introduced the Bill has been advised by draftsmen with legal experience, and the British Museum's legal adviser has also considered both the drafting of the Bill and the amendments. I agree with the noble Baroness, Lady White, that it would be helpful and desirable if the Government draftsman could run his eye over it. It is not for me as a layman to say whether or not it is practicable for the words "treasure trove" to be defined in this Bill. Perhaps the noble and learned Lord, Lord Elwyn-Jones, would be prepared to comment. I myself would need some persuading. I know that in the field of charity law, of which I have had some experience, many people start by thinking it would be a good idea to define what is meant by charity, but end up by concluding that it is impossible to do so.

I believe that treasure trove is nowhere defined in statute, but is a concept of common law. It refers to a Crown prerogative which has developed over a lengthy period of some centuries. To try and define it now in this relatively modest piece of Private Member's legislation is, I should have thought, at least debatable. But this is a matter for the Government's legal advisers to ponder and indeed for those Members of your Lordships' House with relevant legal experience.

Lord Elwyn-Jones

I am certainly not disposed to have a shot at defining treasure trove tonight. While I did say that the law in this field is an ass, it was an ass before this Bill came before the House. This Bill is an endeavour to stop the law being an ass. I should have thought, for the purposes of the Bill, what is contained in Clause 1(2) is a sufficient indication of the purpose of the Bill and of the meaning of treasure trove for the purposes of the Bill.

Baroness Birk

Following upon what my noble and learned friend has said, it seems to me, without his expert advice, that this was covered by the Bill, because Clause 1(1) says that the law of treasure trove, shall operate with the amendments specified in this section". Then it goes on to explain it. The noble Lord, Lord Abinger, put his finger on one of the worries which lie behind the amendment moved by the noble Lord, Lord Digby; the concern of the landowners. I believe their concern is based on the fact that up until now any objects found below the soil belong to the landowner.

Noble Lords may remember that on Second Reading I pointed out that it would probably be possible to come to some arrangement (although it would have to be done in each case separately as this is a Crown prerogative) for assessing the reward between the landowner and the finder. I imagine that this is what has caused some anxiety. The way to deal with this, with great respect, would not be to go back to the absurd position which my noble and learned friend and other noble Lords have pointed out, from the position now which we are trying to alter, which is going back to mere guesswork.

My noble friend Lady White showed on Second Reading that a find of two bracelets could be assumed but not proved to be a deliberate hiding, and be protected for the nation, whereas one such bracelet in the identical spot would probably be taken to be an object that was lost. If the Government are looking at this and want to come forward with any advice now or when the Bill goes to another place, they should remember that the operation of a prerogative to give rewards is reflected in other countries; by the federal laws of West Germany and Austria, where the division is on a 50/50 basis. It does not seem to me that for that to happen would be beyond the ken of not necessarily this Bill but of the exercise of the Crown prerogative, which has to remain flexible and cannot be put into a statute. I do not believe that the amendment would achieve anything that the noble Lord, Lord Digby, wants it to achieve, but would in fact wreck what is a good piece of new legislation.

Finally, I will just remind the noble Lord, Lord Digby, of what Mr. Justice Dillon said in a recent case: The position in which the preservation for the nation of recently discovered antiquities depends upon a prerogative for quite different purposes is not satisfactory ". He then went on to encourage Parliament to adopt criteria in keeping with modern thinking and the ways of modern life. I believe that is what this quite small and simple Bill is intended to do.

The Earl of Avon

May I respond to just a couple of remarks made earlier. I think my noble friend Lord Windlesham rather put his finger on the point when he spoke about something you cannot define. The whole difficulty of this is trying to amend something which you cannot define. That is the point I was trying to make. With regard to what the noble Baroness, Lady White, said, I worded my earlier remarks, I hope, carefully, to say that if the promoters felt so inclined to accept this change perhaps we could be in contact later.

Lord Digby

The noble Baroness, Lady Birk, has read into this amendment something quite different from what I had intended. I was intending to bring that up, and will do so, on the Question that Clause 2 stand part, which I thought the right moment to consider rewards. I would like to say that everything the noble Baroness, Lady White, said has really clarified much better than I could have done what I was after in this amendment. I am concerned that if "hidden" remains I do not believe that the object of this Bill will be achieved. In the case of the single bracelet, for instance, the court will say, "It was not hidden". It is no longer relevant whether it was hidden for purposes of being recovered. But if "hidden" remains that is the situation. I feel that this point must be resolved. I am no lawyer and I may read this in the wrong way, but I understand from the promoters of the Bill that "hidden", which has always been an essential part of treasure trove, would remain under this Bill.

Having said that, this was just intended as a probing amendment. I hope that the Government will be able to help us and that people will read this short debate and consider what should be done. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 [Preservation of Crown prerogative]:

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Digby

At Second Reading the noble Baroness, Lady Birk, suggested that the system of rewards should be revised so as to recognise the claim of the landowner. The noble Earl, Lord Avon, pointed out that this Bill makes a fundamental change in the laws of property, that the Bill proposes the curtailment of centuries old rights of ownership. Landowners on the whole are prepared to accept this if the object is achieved of preserving the heritage for the good of all. This is the essential point that I think we all want. However, definition is now being drawn so widely that it would be appropriate to recognise that owners should be compensated under the reward schemes, as otherwise we are removing the existing rights of ownership and compensating not the owner but the third party who finds the object.

I am also concerned that the system of rewarding the finder full value might encourage excessive use of metal detectors. We have discussed this in the House before. It has been dealt with in scheduled sites. But there is a danger that this practice would receive greater encouragement. Surely the reward should be set high enough to ensure that the finder surrenders the treasure trove to the Crown, but not so high as to encourage irresponsible treasure seeking. So I would ask the noble Lord, Lord Abinger, whether he would support a sharing of the reward and ask the Government whether they would consider any alteration of the rules, in view of the transfer of ownership to the Crown of such a wide range of objects. As I understand it, any reward is not laid down by statute; it is purely a custom. I think this point deserves a little thought.

7.45 p.m.

Lord Abinger

In reply to my noble friend, there is nothing whatsoever in the law of treasure trove as it stands at the moment which is concerned with rewards. Rewards are purely a custom which has grown up comparatively recently. There was a time when I wondered whether it would be proper to discuss them at all, because it is a Crown prerogative. I have always been puzzled by the grievance which landowners expressed at times, that it is the finder of an object who is given the reward rather than the landowner. That may be correct, but surely the remedy lies in the landowner's own hands. If he felt strongly about obtaining some possible reward he would not allow people on to his land unless he had made some fairly firm agreement that any reward paid should be shared between them.

What I think is rather deplorable at times is that searchers go on to private land, more particularly local authority land, without authority. It is a fairly rare event if they find treasure trove, but if they do they are paid the reward. On the whole, the remedy already lies in the hands of the landowner. I do not think I would say more than that. I do not think it has to be worked into the Bill in any way. I do not think it can be, because it is a prerogative of the Crown and the Crown must have discretion as to how this matter is to be treated.

The noble Lord, Lord Digby, mentioned that the widening of the criteria for treasure trove may encourage more treasure searching. That is an activity which is increasing the whole time, whether we like it or not. It is not really a subject with which this Bill is concerned. can only say that, on my own farm, if anyone wants to come and search for treasure, the chances of them finding any are about one in a thousand, I suppose, but I would make quite certain that if a reward was ever paid we would go fifty-fifty with it. I think Lord Digby might be well advised to do the same.

Baroness Birk

I would like to support the noble Lord, Lord Abinger, in his reply to the noble Lord, Lord Digby. He is absolutely right. A great many things which end up as treasure trove are found by landowners themselves or their agents or third parties whom they have licensed to search. Where people come on the land and have no right to be there, the landowner has the right to expel them or have them prosecuted as trespassers. What concerns me when we are discussing this side of the matter is that the tail should not wag the dog.

Surely any reward system must be a consequence, not the object, of proper antiquities legislation. We must remember that the true object of the legislation, and the object of this particular Bill, is the rational and careful protection of antiquities for archaeological ends. Therefore, this question of how the reward can be worked out—which I think is not such a major point as Lord Digby made it appear, although he possibly did not mean it in that way—is something that must be subservient to the protection of archaeological finds. This is what the legislation is about, and I think this must have the greatest priority and importance.

Baroness White

I wonder whether the Minister can enlighten us in his comments. Presumably, as we are dealing with a prerogative power of the Crown, it would be possible—would it not?—if it was really thought on other grounds to be desirable, for the prerogative to be used in such a way that possibly the landowner might also have his share through prerogative action rather than through any statutory provision in this Bill.

The Earl of Avon

I am not quite sure of the answer to the question which the noble Baroness has raised. I do not think it really applies because, as the noble Lord, Lord Abinger, has said, there is nothing written about this. It is something which has happened—that is my understanding.

Baroness White

Then something different could happen if it were thought to be desirable?

The Earl of Avon

Absolutely. This comes back to defining and, to a degree, to definitions. I do not think that I want to add anything to what I said on Second Reading on this subject. The House knows that the Government are a little worried about the right of property owners without compensation, and also probably remain to be convinced that the Crown right should be extended. However, having so said, I do not wish otherwise to be drawn.

Baroness White

I should like to pursue that matter for a moment. It seemed to me, as a completely lay person in this matter—although I happen to be a modest member of the Country Landowners' Association—that we should be regarding this less as depriving the landowner of a possible right than as an extension of the Royal prerogative. One would hope that prerogative, if it really seemed desirable to modify it, could be modified by sensible and civilised discussion with the powers that be, rather than by worrying ourselves unduly about the statutory provision which we are trying to make in this Bill.

Lord Digby

I did not want to make this into a major issue. The precise reason why I brought it up on the Question, Whether the clause shall stand part, is that I do not think that it is suitable for an amendment at all. I hope that our discussion will certainly be read in Hansard by the officials and by the Minister, and that perhaps the problem will be thought through in that way. It is not, as has been said, a question of legislation, and I brought it up under the Question, Whether the clause shall stand part, purely for that reason.

Clause 2 agreed to.

Clause 3 [Duty to report finds]:

Baroness Birkmoved Amendment No. 4: Page 2, line 2, leave out ("forthwith and in any event").

The noble Baroness said: I beg to move Amendment No. 4 and, with the permission of the Committee, I wish to speak also to Amendment No. 5. The requirement in the Bill to report promptly provided originally for a period of 48 hours. Such a period I think can be well justified on archaeological grounds. But on Second Reading it was quite clear that this idea attracted a considerable amount of criticism. Therefore, it is proposed to amend the period to seven days. I think that this is a good, practical compromise and reflects the feeling expressed by many noble Lords on Second Reading. It therefore makes quite redundant: forthwith and in any event". I beg to move.

The Earl of Avon

The Government welcome a more realistic time allowed for reporting finds.

On Question, amendment agreed to.

Baroness Birkmoved Amendment No. 5: Page 2, line 2, leave out ("forty-eight hours") and insert ("seven days").

On Question, amendment agreed to.

Baroness Birkmoved Amendment No. 6: Page 2, line 6, leave out from ("shall") to ("is") in line 7 and insert ("leave undisturbed the place in which such object").

The noble Baroness said: I beg to move Amendment No. 6. We turn now to the preservation of the site of a find. Two changes are proposed by Amendment No. 6. Originally the clause required, if practicable, that the find itself be left undisturbed. With a maximum period of 48 hours to report, that was a feasible and practicable proposition. But a period of seven days for reporting makes it preferable to accept that the find itself can be removed in any or in every case as it happens to turn out. As to the site itself, here also the obligation not to disturb was qualified by the words: if and so far as practicable". That ground of defence has now been rendered superfluous by the new form of Clause 4(2) which follows. I beg to move.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 [Supplementary provisions]:

Baroness Birkmoved Amendment No. 7: Page 2, line 12, after ("person") insert ("fails without reasonable excuse to comply with or knowingly").

The noble Baroness said: I beg to move Amendment No. 7. The Bill originally created an absolute offence—to report and to leave the object undisturbed. The amendment now provides a defence of reasonableness. This again was in answer to disquiet expressed during Second Reading on the length of time allowed for reporting and also on the concept of the absolute offence introduced into the Bill.

The amendment is precedented. It comes from the Public Health Act 1936 Section 95(1). It expresses clearly and shortly everything needed for the protection of an innocent person. I believe that it does not need any further elaboration and that is the view of the other sponsors of the Bill. The just enforcement of this measure is now, I believe, in line with the views of the noble Lords expressed on Second Reading and will now rest upon the fairness and good sense of the magistrates of this country. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Remaining clause agreed to.

In the Title:

Lord Abingermoved Amendment No. 8: In the Title, line 1, leave out ("small") and insert ("portable").

The noble Lord said: It has been suggested that the word "portable" would be more suitable than "small", because the word "small" is not used in the main body of the Bill at all whereas the word "portable" is used. There is also the problem of, how small is "small"? I think that what the promoters of the Bill wish is, any object which can be carried, which is portable and which is necessarily small. In certain circumstances I imagine that you could find a very heavy statue which could or could not qualify as treasure trove, but if it did in the circumstances in which it is found it would hardly be small but it would be portable. I beg to move.

The Earl of Avon

I shall not detain the Committee very long, but I would like to remind the Committee what I said about the definition earlier on. I think it can be said that "portable" is better than "small", but still the word "portable" leaves Stonehenge ready to be taken away, and I am not quite sure whether that is intended.

On Question, amendment agreed to.

The Title, as amended, agreed to.

House resumed: Bill reported with the amendments.