HL Deb 03 June 1986 vol 475 cc768-87
Lord Sandford

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 Sandford.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD HAYTER in the chair.]

Clause 1 [Application of Act]:

Lord Trefgarne moved Amendment No. 1:

Page 1, line 1, leave out from beginning to end of line 34 on page 2 and insert—

("(1) This Act applies to any aircraft which has crashed (whether before or after the passing of this Act) while in military service.

(2) Subject to the following provisions of this section, the Secretary of State may by order made by statutory instrument—

  1. (a) designate as a vessel to which this Act applies any vessel which appears to him to have sunk or been stranded (whether before or after the passing of this Act) while in military service;
  2. (b) designate as a controlled site any area (whether in the United Kingdom, in United Kingdom waters or in international waters) which appears to him to contain a place comprising the remains of, or of a substantial part of, an aircraft to which this Act applies or a vessel which has so sunk or been stranded;
and the power of the Secretary of State to designate a vessel as a vessel to which this Act applies shall be exercisable irrespective of whether the situation of the remains of the vessel is known.

(3) The Secretary of State shall not designate a vessel as a vessel to which this Act applies unless it appears to him—

  1. (a) that the vessel sank or was stranded on or after 4th August 1914; and
  2. (b) in the case of a vessel which sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that remains of the vessel are in United Kingdom waters.

(4) The Secretary of State shall not designate any area as a controlled site in respect of any remains of an aircraft or vessel which has crashed, sunk or been stranded unless it appears to him—

  1. (a) that those remains are on or in the sea bed or are in, or in the immediate vicinity of, the place where they were left by the crash, sinking or stranding;
  2. (b) that less than two hundred years have elapsed since the crash, sinking or stranding;
  3. (c) that the owners and occupiers of such land in the United Kingdom as is to be designated as, or as part of, that site do not object to the terms of the designating order which affect them; and
  4. (d) where the aircraft or vessel crashed, sank or was stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom, that the remains are in the United Kingdom or in United Kingdom waters.

(5) An area designated as a controlled site shall not extend further around any place appearing to the Secretary of State to comprise remains of an aircraft or vessel which has crashed, sunk or been stranded while in military service than appears to him appropriate for the purpose of protecting or preserving those remains or on account of the difficulty of identifying that place;").

The noble Lord said: In moving this amendment, I hope that it may be for the convenience of the Committee if I speak at the same time to Amendments Nos. 6, 7, 8, 9, 12, 13, 14, 15, 17, 18, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31 and 32, all of which are related and consequential.

Lord Sandford

I wonder whether I may interrupt my noble friend while he is dealing with the grouping of the amendments. It may also give him an opportunity to catch his breath. I suggest to the Committee that in following my noble friend's suggestion about the grouping, we note that manuscript Amendment No. 1A and Amendments Nos. 2, 3, 4 and 5 are amendments to my noble friend's amendment, Amendment No. 1. Under the strict procedure, it is necessary, as soon as my noble friend has spoken to Amendment No. 1 and the group associated with it, for the Chairman to call the first of the amendments to Amendment No. 1. That will be Amendment No. 1A. I suggest that, after my noble friend Lord Onslow has spoken—I guess, briefly—to his amendment, Amendment No. 1A, we should have a general debate on all the amendments that are linked with my noble friend's amendment, Amendment No. 1, although it is specifically Amendment No. 1A that will have been put to us. I hope that this will be for the convenience of the Committee.

Lord Trefgarne

That sounds to me an entirely proper way to proceed although I am of course in the hands of the Committee. Returning to the amendment that I moved, the purpose of the amendment and those that go with it is to require military vessels to be individually designated for protection under the Bill rather than being automatically protected as a class. The Bill as originally drafted makes it an offence to interfere with all aircraft and vessels that crashed, sank or were stranded while in the service of the armed forces unless they have been removed from the protection of the Bill by the issue of a licence. This kind of blanket protection is essential in the case of those military aircraft that were lost without trace in the Second World War and the remains of which have still not been found. In some cases we have no idea whether they lie on the seabed or are buried in British or foreign soil. Since their location and, in the case of foreign military aircraft, their identity is not known, they cannot be individually designated for protection.

There are similar arguments for having blanket protection for military vessels. No one knows the exact location of many of the vessels we would wish the Bill to cover. But if we are protecting military vessels as a class we must define the category of vessel to which the Bill is to apply. This would have to be done in a way that can readily be interpreted, and that draws a clear line between those vessels that are covered by the Bill and those that are not. The difficulty is that during the two world wars many merchant ships and fishing vessels were used for military purposes. Whether a particular merchant vessel would be covered by the Clause 1 definition of in service as [a] vessel of the naval, military, or air forces is a matter of legal interpretation and would depend upon the terms on which that vessel had been placed at the disposal of those forces. This information is not for the most part readily available. In some cases it may no longer exist. My department would find it extremely difficult, and often impossible, to advise divers—amateur or professional—exactly which wrecks were protected by the Act. I am sure that noble Lords would agree that it would be regrettable if the enjoyment of thousands of amateur divers was spoilt by the burden of this uncertainty.

Since we wish to remove any uncertainty about the identity of the vessels covered by the Bill, we feel that the Bill should apply only to those vessels which have been designated by name or other description in an order made by statutory instrument. I am sure that this change will be generally welcomed by the diving world. I hope that noble Lords will therefore feel able to agree to this amendment and those that follow it. I beg to move.

The Deputy Chairman of Committees (Lord Hayter)

There is a manuscript amendment, Amendment No. 1A, as an amendment to this Amendment No. 1.

The Earl of Onslow moved, as an amendment to Amendment No. 1, Amendment No. 1A: In subsection (2), in paragraph (b) leave out ("or in international waters").

The noble Earl said: This amendment is designed to cover the very real worries of the diving profession who feel that if the Act is passed it will be an offence for anybody on a UK ship, or any United Kingdom citizen working for a foreign company, to be involved in diving on a controlled site. It is arguable that this could be put up as a restraint on trade under the European Community's law. It certainly has produced in, for instance, Amendment No. 6, some rather divine wording to an Act. That says, more or less, that the Secretary of State shall not say that an English person may not dive on a foreign ship in the Pacific.

Earlier on there is something which is so completely sublime that it deserves a certain amount of comment. In subsection (4) of the new amendment, as proposed by my noble friend Lord Trefgarne, it says: The Secretary of State shall not designate any area as a controlled site in respect of any remains of an aircraft … which has crashed … unless it appears to him— (b) that less than two hundred years have elapsed since the crash". I was totally ignorant of the fact that Saumarez commanded Sunderland aircraft, that St. Vincent had Sea Vixens, that Nelson had Nimrods, or that Wellington's supply lines were covered by Liberators of coastal command. I understand the feeling behind this Bill. I think that it is very serious and reasonable. But we surely cannot put into legislation something that is so gloriously funny as that. It brings this into the realms of pure fantasy. I could not resist calling the attention of noble Lords to that.

The much more serious part is the effect of legislating that English people cannot do things in international waters which foreigners can. I know that my noble friend has been trying to organise a general licence for British diving companies. We hope that that general licence will encourage a legally enforceable international convention upon diving for wrecks on the seabed in international waters. However, if we do not have a proper and really advanced form of general licence by Report stage, which is agreed between the Ministry of Defence, my noble friend, and the diving professions, we shall put ourselves into a very serious dilemma.

Even if we have an agreed general licence, we still come up against the position where a sailor from Hartlepool gets himself a job on a Liberian-registered diving ship, and all the other crew are of other nationalities. If that man is present as a donkey wynch man—or whatever they have on vessels, I am not well up on the detailed technicalities of the merchant marine—and that vessel is involved in diving on a controlled site (which is perfectly legal for them to do under the laws of Liberia or Liechtenstein or wherever it may be) he is in danger of being prosecuted under the criminal law of this country.

I am in great sympathy with what my noble friends Lord Sandford and Lord Trefgarne are doing. But unless the amendment of my noble friend Lord Trefgarne is amended to exclude international waters, we are in danger of making fools of ourselves. I am a great fan of this Government and I do not want them to make fools of themselves. They do not normally. On this occasion they could be verging on that unless they take some of the action that I propose. I beg to move.

Lord Graham of Edmonton

If the Government are in danger of making fools of themselves it is not part of my brief tonight to intervene. However, I think that the Minister needs to deal with this matter head on. We are talking about the consequences of the Bill that those with whom the noble Lord has had conversations have said will follow if the amendment remains unamended. Those who are carrying on a profession in this country are subject to our laws. If in future they are to be at a disadvantage in comparison with those with whom they compete in that profession internationally, under their laws, we surely do not legislate to put our people and our business at a disadvantage. If the Minister accepts that that is the effect of the Bill and the amendments he will surely want to get this right. That might mean satisfying the interests of those outside who say that they have got it wrong, as well as changing the form of the Bill.

I have received advice broadly along similar lines. The offshore diving contractors are concerned at what, perhaps needlessly, they see as being detrimental or damaging to their business. If that is the case, and if we are in effect encouraging—by neglecting our own interests—the interests of foreign owners, then the Minister will need to spend a little time on this. He was quite open in what he said were the intentions. The night is young. There are many interesting debates ahead of us. At this stage we ought to spend a little more time on this. I am certainly far from satisfied. We are not talking about pressing issues to votes. We are talking about the urgent need for the Minister to get it right for the Report stage. I very much hope that the Minister will spend some time doing just that.

Lord Sandford

Let me begin by welcoming the main purpose of my noble friend's group of amendments; namely, the avoidance of doubt by drawing up a list of the vessels which will be subject to this Bill. That must be an advantage. I am sorry for my noble friend, and to some extent for all of us, that it has taken some 30 or so amendments to do it.

On the question of the list of vessels, I ask my noble friend, when we get round to dealing with his amendment as opposed to the amendments to it, whether he would be ready to confirm that the Association of Off-Shore Diving Contractors will be among those consulted about the compilation of the lists. After the first lists have been produced, will the Secretary of State be open to requests for changes to be made to them? There are a number of criteria which lead to their compilation and they may lead to requests for the lists to be amended. I would like to hear from my noble friend about the mechanisms for that.

The second matter about which we want to be clear is the length of time it will take to compile the lists. It is obviously important that the Bill, even if enacted, should not be brought into force until the lists are ready. If the lists will not be ready within two months of the enactment of the Bill, then Clause 10(2) will need amendment at the next stage. Perhaps my noble friend will give us some indication on that point. Either the lists are ready now or they will be ready in a few weeks' time. Alternatively, Clause 10(2) will need to be looked at to see whether a further lapse of time is needed.

I now turn to Amendment No. 1A of my noble friend Lord Onslow, which deals with the situation in international waters; namely, that we can only take steps to protect remains in ships lying in international waters by constraining our own British vessels, and if we do that excessively it will only be to the advantage of salvage and diving ships of other nations. My noble friend has sought to deal with that situation with the concept of an advance general licence, which is in my view the right way to deal with it.

I shall speak at some length on the Motion, That Clause 4 shall stand part, in order to give the Committee an indication of where we have reached in the matter. However, I must agree with my noble friend Lord Onslow that unless the development of the concept of an advance general licence and the associated code of practice is fairly well developed—almost to the point of being ready for publication by the next stage—we shall have to think seriously about having the dimension of international waters in the Bill at all.

As my noble friend has said, the danger is that we shall give the impression by having it in the Bill that the jurisdiction of Her Majesty's Government extends beyond the range of what is actually practical. We do not want to give anyone the impression that we can safeguard human remains in ships in international waters when in fact all that we can do is call off British ships and leave the salvage open to other countries to dive on. Therefore, that point needs looking at very carefully. I hope that my noble friend will not feel it necessary to press Amendment No. 1A. However, we shall have to see how we progress with the advance general licence by the time we reach the Report stage.

Apart from that, I personally welcome very much the amendments which my noble friend has tabled and I should like to take the opportunity of thanking him for tabling them before the Recess and enabling us all to have a good look at them—something which does not always happen.

Lord Grimond

Am I right in thinking that I should now move my first amendment?

Lord Sandford

I do not think that the noble Lord should move it formally, but he should speak to it. I should have thought that it would be for the convenience of the Committee to have all these issues aired at the beginning.

Lord Grimond

The noble Lord is saying that I should speak to it?

Lord Sandford

Yes.

7.45 p.m.

Lord Grimond moved, as an amendment to Amendment No. 1, Amendment No. 2: Leave out lines 18 to 20.

The noble Lord said: I beg to move Amendment No. 2. I should like to apologise for not having been here for the Second Reading debate, but I was in hospital. Had I been here, I confess that I would have suggested that the Bill was unnecessary. However, by saying that I do not mean any disrespect to the proposer and mover, and I suspect that most of the Bill's objects can be obtained or are already being obtained. However, I do not intend to pursue the matter.

My amendment is to omit lines 18 to 20 on page 1 of the noble Lord's amendment. As it reads at present, the Secretary of State can designate a vessel even though he has no idea where it is. In my view, the Bill should be kept as simple and as clear as possible. I do not believe that it is necessary to give the Secretary of State these rather Alice-In-Wonderland powers to designate a vessel when he has no idea where it is. It could greatly complicate the operation of the Bill and I cannot see that it gives any advantages. Therefore, in the interests of clarity and common sense I suggest that those lines be struck out. I beg to move.

Lord Trefgarne

I think I am replying to at least two amendments, but I shall do my best. Perhaps I may deal first with the amendment of my noble friend Lord Onslow. As I understand it, what lay at the heart of my noble friend's anxiety was the problem about British subjects employed, for example, by foreign companies, who might find themselves in difficulties as a result of the Bill.

I am advised that it is by no means unknown for British subjects working for foreign firms to be faced with this dilemma. Indeed, it could also happen to a British subject working for a British company if, for example, he is ordered to salvage a designated wreck without the protection of a licence. I agree that that is unfortunate, but it does not, in the Government's view, justify a special provision in the Bill. As I hope your Lordships will agree, it could seriously undermine the effectiveness of the Act if British subjects could escape its restrictions by operating from a foreign vessel.

My noble friend Lord Sandford asked me, I think in the context of my own amendment, about progress on the licence. I understand that discussions are continuing. I should certainly hope that agreement could be reached by the time we come to the next stage of the Bill, and I hope that my noble friend will be satisfied to hear that.

The Earl of Onslow

I hesitate to interrupt my noble friend, but he has not quite taken on board how seriously some of us—especially those in the diving community—regard the difficulty of separating British firms from foreign firms. I think we would all rather that a British firm went and dived with a general licence on to HMS "Trinidad", for instance, which sank in international waters somewhere in the Antarctic but I believe is within the range of modern diving equipment which, as my noble friend knows, has advanced enormously. If we do not get the general licensing law, it will be impossible to separate British companies from foreign companies. I am sorry to pursue the matter.

Lord Trefgarne

I understand my noble friend's anxiety. Let me remind him of what I think I have said to him on more than one occasion at the various meetings we have had, and I have certainly said it to those who have come to see me to express their views or reservations on this matter. The purpose of the Bill is to protect the sanctity of the war graves. It is therefore in our interests to ensure that British firms conduct this work under the protection of a licence which we shall therefore hasten to issue in appropriate cases. It will clearly be in our interests to ensure that a British firm has a licence to operate and does so in accordance with the provisions of the licence rather than allowing haphazard access by foreign firms, which might otherwise be the case.

The Earl of Onslow

We cannot stop haphazard access by foreign firms. What happens is that we prosecute the Hartlepool docker for working for the foreign firm that is doing it.

Lord Trefgarne

I do not think that my noble friend has quite understood what I was saying. The way we stop haphazard access by foreign firms is to hasten to license British firms.

May I turn now to the amendment moved by the noble Lord, Lord Grimond. I am replying to it at this moment. Strictly speaking, he has not yet, I think, formally moved the amendment, but I hope that your Lordships will agree that it would be appropriate for me to reply nonetheless.

I understand the noble Lord's reasons for proposing this amendment. There would of course be less uncertainty for fishermen, sports divers and others, if we designated only those vessels whose exact location was known. But there are many war graves whose position is unrecorded and is still unknown. I am thinking of vessels which were torpedoed during the war and sank immediately with loss of life before their position could be reported. These are graves which should be protected by the Bill. They could be designated only by name.

If we must wait until the remains are located before we can designate them for protection, it could often be too late. If the vessel is discovered by salvors who are not prepared to respect the sanctity of any human remains in it, there will be nothing to stop them ripping it apart. By the time the find was reported it would be too late to prevent the desecration.

To understand how the designation of vessels by name only would affect the ordinary diver who came across an unidentified wreck one must look at Clause 2, which sets out the offences. The Government amendment to Clause 2(1)(b) would make it an offence for a person to interfere with a designated vessel if he believed or had reasonable grounds for suspecting that the vessel was in military service when it sank.

If a diver discovers an unidentified wreck which he has no reason to believe is a military one, he would not commit an offence if he interfered with it. In some cases of course he would be able to see that it is a military vessel. He may not know whether it is a designated one, but he is on notice that if it is and he interferes with it he will be committing an offence.

We do not think it unreasonable to expect divers not to interfere with an unidentified military vessel unless they believe on reasonable grounds that it is not a designated one; otherwise there could be no protection for war graves in unknown locations. I hope that the noble Lord will agree that this is a reasonable approach and will feel able to withdraw his amendment.

Lord Graham of Edmonton

This is a Committee stage and I assume that I am able to make more than one contribution. I listened carefully to what the Minister said to the noble Earl, Lord Onslow. He was saying that when we see the advance licence it will be in such a form as to put the British company in the same position as a foreign company. The rights and responsibilities which have to be accepted by the British company before they are as free as a foreign company to dive on a designated ship in international waters will be minimal, but will be so unconstrained that in effect they will be on a par. If that is the case, I am reasonably reassured.

My concern is partly at the irksomeness of British companies having to do something that a foreign company has not got to do. This is a matter of consultation and there has to be give and take; and if the interests outside the Committee tell us that it is reasonable and that they are just as capable of being as quick off the mark, and by using their intelligence in more ways than one are able to do something and will not be inhibited from doing what they are legally entitled to do according to the licence, that would go a long way.

I am sure that the Minister does not need to be told by anyone here that besides protecting the sanctity of those who lost their lives, the designation of a war grave and the feelings of the bereaved, what we are talking about is a commercial undertaking as well. What the Minister said satisfies me, and it also satisfied me in respect of the points made by the noble Lord, Lord Grimond. I can well understand a situation arising where, in order to provide some kind of restraint, and knowing the cargo in the vessel or the nature of the contents but not the direct location, one needs to have the kind of general designation without being specific. I personally am satisfied from what the Minister has said on those amendments.

The Earl of Onslow

I shall certainly withdraw my amendment to the amendment that the noble Lord moved. I think that my noble friend understands clearly that I find a certain amount of nonsense going on in this Bill, and I shall be happy to come back at Report stage if it is not sorted out.

Amendment to the amendment, by leave, withdrawn.

Lord Grimond

I am slightly intimidated by what the noble Lord, Lord Sandford, has said, in case I have not moved my amendment. If I have moved it, I should now like to withdraw it.

Amendment to the amendment, by leave, withdrawn.

Lord Grimond moved, as an amendment to Amendment No. 1, Amendment No. 3:

Line 20, at end insert— ("(2A) Before making any such order the Secretary of State shall consult the relevant local authority and the owner of the land or sea-bed.").

The noble Lord said: I beg to move Amendment No. 3, with which I think it is convenient to take Amendment No. 5. If the Committee would first look at Amendment No. 5, that proposes to leave out subsection (4)(c) of Clause 1. That subsection enforces on the Secretary of State the need to have the agreement of the owners or occupiers of any land before he can designate it as a controlled site. That is to say, the owner or occupier of land has a complete veto, as I understand it. If he does not agree, then the site cannot be designated.

I do not see any good reason why the owner or occupier should have an absolute veto. I appreciate that he ought to be consulted, but why he should have a veto I am not certain. Secondly, I am not clear who are the owners or occupiers, or about the definition of "land". In Orkney and Shetland the udal landowners own the bed of the sea down to low watermark, and all around Britain the bed of the sea within British waters is either owned by the Commissioners of Crown Lands or by the Crown itself, or by the udallers.

As the Minister will know the Commissioners of Crown Lands are different from the Crown, and I should like to know whether he intends that they count as owners of land, and if so whether they are entitled to be consulted and indeed to veto any proposals to declare a site in their case below high watermark everywhere except Orkney and Shetland.

All that is needed is that there should be consultation. I believe that there should be consultation not only with the owners or occupiers but, more particularly, with the local authorities. As is well known, it is the "Royal Oak" which has created a good deal of the anxiety which led to this Bill. It is the Island authority, or their predecessors the county authority of Orkney, who have been concerned with the "Royal Oak". It is the fishermen, and to some extent divers and tourists, who are interested in what happens to wrecks of this sort, and it is the local authorities who should be in a position to represent the views of the fishermen and indeed of the tourist industry in their area.

I should have thought that both the designation of vessels or aircraft, or the designation of sites, should involve some contact with local authorities. I believe that the Minister rather fancies notification. In any case they should be made aware of what is happening and be given an opportunity to represent their own case and that of the people affected. We should clear up whether it is intended that the people who control the seabed count as owners or occupiers. I daresay there may be a small point in connection with common lands and common grazings. I take it that in the case of the owner-occupier that would be the Grazings Committee. But I do not know whether the Government have taken into account the possible difficulties of dealing with the situation on common land where a good many aircraft crash.

I therefore beg to move the first of the amendments which stand in my name. I am fully aware that they will need redrafting. I hold no copyright in the profession of drafting. But I think the purpose is clear: it is to bring in the local authorities, to get rid of the absolute veto which owners and occupiers have under the Bill at present, and to make it quite clear who is an owner-occupier and what is the status of people, udallers and the commissioners of crown lands who claim an ownership of the bed of the sea. I beg to move.

8 p.m.

Lord Trefgarne

This amendment, taken in conjunction with Amendment No. 5, is more restrictive than the current provisions in some ways but less restrictive in others. It would require us to consult a local authority before designating a vessel or a controlled site. I presume the noble Lord intends such consultation only where the wreck lies within a local authority's boundary. As he is no doubt aware, this would exclude most areas within territorial waters. This is no great imposition, but we do not believe it to be necessary unless the controlled site is on land controlled by the local authority. Clause 1(4)(c) as it stands would require such consultation in the latter case. I understand that the noble Lord has it in mind that the local authority would protect the interests of sports divers and fishermen. The noble Lord referred to this just now. We are already consulting the organisations which represent sports divers and fishermen. I am sure that this is the best way to deal with the legitimate concerns of both these groups. To consult separately with local authorities, I believe, would only confuse matters and add unnecessarily to their burden.

The amendment would also require us to consult the owners of the seabed. Most of the seabed in United Kingdom waters is owned by the Crown. We would consult the Crown Estates Commissioners about any areas of seabed we would wish to designate under this Bill. Any problems relating to private rights are, I believe, best resolved through this channel. So far as international waters are concerned, it would be our policy to consult the Foreign Office before designating a controlled site.

These amendments would in other ways make the Bill less restrictive than at present. In the Bill as drafted the Secretary of State must satisfy himself that owners and occupiers do not object to the terms of an order designating a controlled site. If the noble Lord's amendment were accepted the Secretary of State, having consulted the owner, could proceed to designate the site even if the owner objected. We are not particularly keen to be given this power. When the remains of military aircraft are discovered on private land we rely heavily upon the co-operation of the landowner. This co-operation may be jeopardised if designation orders could be made against his wishes. Owners may become reluctant to allow us on to their land to inspect crash sites. I am sure the noble Lord would not wish to place us in that difficulty.

I am not entirely clear on the position on common land, to which the noble Lord referred. Perhaps I could take some advice on that and write to the noble Lord. But I hope in the light of the difficulties that I have described the noble Lord will feel able to withdraw his amendment.

The Earl of Onslow

Arising from my noble friend's reply, will he please inform the Committee whether the Foreign Office will consult people over designation in international waters over ownership, and with whom they will consult?

Lord Trefgarne

That is not quite what I said. I said that my department would consult the Foreign Office in that situation.

Lord Grimond

I must confess that I am not wholly satisfied with the noble Lord's reply. I am not sure that the Government have taken on board the position of fishermen who may be considerably affected by the orders made. I am not sure that I am convinced that owners would have an absolute veto, without apparently giving any reason. But these are matters to which we might return. In the meantime, I beg leave to withdraw my amendment.

Amendment to the amendment, by leave, withdrawn.

Lord Grimond moved, as an amendment to Amendment No. 1, Amendment No. 4: In subsection (4), leave out paragraph (a).

The noble Lord said: This amendment proposes to leave out Clause 1(4)(a) of the noble Lord's own amendment. It seems to me that this paragraph is one of those constantly written into Bills which are for the prevention of lunacy in Ministers! It is a difficult question as to how far one is to presume the possibility of lunacy in Ministers. Personally, I am suspicious of all Ministers and am inclined to think that they may go mad. But I think that this paragraph is unnecessary. I am sure that no Minister would designate a controlled site after the remains had been removed from it. I cannot believe that even the wildest Minister would designate the Imperial War Museum, for example, as a controlled site. Therefore, unless one imagines that Ministers are liable to go totally round the bend, in the interests of brevity we might omit paragraph (a) of subsection (4). I beg to move.

Lord Trefgarne

I am totally relaxed about this amendment. If the Committee think it a good thing to treat the Bill in this way, I shall not object.

On Question, amendment to the amendment agreed to.

Lord Grimond had given notice of his intention to move, as an amendment to Amendment No. 1, Amendment No. 5: In subsection (4) leave out paragraph (c).

The noble Lord said: This amendment has already been dealt with. I do not propose to move it.

[Amendment No. 5 not moved.]

The Deputy Chairman of Committees (Lord Hayter)

I now have to put the Question on Amendment No. 1.

On Question, Amendment No. 1, as amended, agreed to.

Lord Trefgarne moved Amendment No. 6:

Page 2, line 37, at end insert— ("(5A) For the purposes of this Act a place (whether in the United Kingdom, in United Kingdom waters or in international waters) is a protected place if—

  1. (a) it comprises the remains of, or of a substantial part of, an aircraft or vessel to which this Act applies; and
  2. (b) it is on or in the sea bed or is the place, or in the immediate vicinity of the place, where the remains were left by the crash, sinking or stranding of the aircraft or vessel;
but no place in international waters shall be a protected place by virtue of its comprising remains of an aircraft or vessel which has crashed, sunk or been stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom.")

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 7:

Page 2, line 41, leave out subsection (7) and insert— ("(7) The Secretary of State may by order made by statutory instrument substitute references to a later date for the reference in subsection (3)(a) above to 4th August 1914 or for any reference to a date which is inserted by an order under this subsection; and a statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

The noble Lord said: With the Committee's permission, perhaps I may speak to Amendments Nos. 7, 8 and 9 en bloc. They are all consequential on Amendment No. 1.

I beg to move Amendment No. 7.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Offences in relation to remains and prohibited operations]:

Lord Trefgarne moved Amendments Nos. 8 and 9:

Page 3, line 9, leave out ("is, or")

Page 3, line 12, leave out ("to which this Act applies") and insert ("which has crashed, sunk or been stranded while in military service")

On Question, amendments agreed to.

Lord Trefgarne moved Amendment No. 10: Page 3, line 26, leave out from ("enters") to end of line 29 and insert ("any hatch or other opening in any of the remains which enclose any part of the interior of an aircraft of vessel; or")

The noble Lord said: I beg to move.

Lord Grimond moved, as an amendment to Amendment No. 10, Amendment No. 11: Line 2, leave out ("hatch or other").

The noble Lord said: I intend to move this amendment briefly. It is intended to be a simple drafting amendment. A hatch is clearly an opening, and therefore to say "any hatch or other opening" is redundant. I know the reason for this is that the Minister wishes to make clear that he is referring to openings as against the skeleton of a ship. If a ship is entirely open then people will be allowed to dive through it, but if there are "hatches or other" openings they may be forbidden. I appreciate his objective, but I wonder whether he might not consider a rather more elegant way of putting it than saying "any hatch or other opening", because to ordinary persons a hatch is an opening.

Lord Trefgarne

The Government do not feel strongly about retaining the words "hatch or other" in this subsection. It can be argued, as the noble Lord has suggested, that the words are unnecessary. However, as the noble Lord has said, it is our wish that the offence should not apply in cases where, for example, a person swims into a hull when most of the upper deck is missing. I believe that the parliamentary draftsmen have done a good job in this area, and although I certainly should not want to go to the stake on this I hope that on reflection the noble Lord will not wish to press his amendment.

Lord Grimond

In those circumstances, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, Amendment No. 10 agreed to.

Lord Trefgarne moved Amendments Nos. 12 to 15:

Page 3, leave out lines 32 to 36.

Page 3, line 42, leave out ("is, or")

Page 4, line 5, leave out (" (whether or not the place is, or") and insert ("or in a place which")

Page 4, line 10, leave out ("to which this Act applies.") and insert ("which has crashed, sunk or been stranded while in military service.")

The noble Lord said: Again with your Lordships' permission, perhaps I may move Amendments Nos. 12 to 15 en bloc. They are all consequential upon Amendment No. 1.

On Question, amendments agreed to.

Lord Trefgarne moved Amendment No. 16:

Page 4, line 12, leave out subsection (4) and insert— (" (4) In proceedings against any person for an offence under this section, it shall be a defence for that person to show that what he did or, as the case may be, what he caused or permitted to be done was done under and in accordance with a licence under section 4 below.")

The noble Lord said: This is a technical, drafting amendment which puts beyond all reasonable doubt that where it is claimed that an act was done in accordance with the licence, the onus is on the defence to prove that it was. Similar observations apply to Amendments Nos. 20 and 25, which I hope the Committee will allow me to move formally when we get to them. I beg to move Amendment No. 16.

On Question, amendment agreed to.

Lord Trefgarne moved Amendments Nos. 17 and 18:

Page 4, line 19, leave out ("is not, and")

Page 4, line 24, leave out from ("place") to end of line 27.

The noble Lord said: This amendment, together with No. 18, is consequential upon Amendment No. 1 With the leave of the Committee, I beg to move both amendments.

On Question, amendments agreed to.

Lord Trefgarne moved Amendment No. 19:

Page 4, line 37, at end insert— (" (7A) Nothing in this section shall be construed as restricting any power to carry out works which is conferred by or under any enactment.")

The noble Lord said: This amendment would exempt from the application of the Act any person exercising functions conferred by or under any other enactment and is necessary in certain cases. For example, housing and highway authorities occasionally unearth the wreckage of an aircraft in the course of building operations. We would not want them to fall foul of these provisions. I beg to move.

The Earl of Onslow

If that is the case, what happens if a farmer unearths the remains of a designated aircraft not having known where it had crashed? I am sure that that particular farmer, or ordinary builder, should have the protection of accidental unearthing which the highways authority have.

Lord Trefgarne

No. Merely stumbling across a wreckage, as I endeavoured to explain earlier, does not fall foul of the provisions of this Bill.

On Question, amendment agreed to.

8.15 p.m.

Lord Trefgarne moved Amendment No. 20:

Page 4, line 38, leave out subsection (8) and insert— (" (8) References in this section to any remains which are comprised in a protected place or to any remains which are comprised in a place which is part of a controlled site include references to remains other than those by virtue of which that place is a protected place or, as the case may be, to remains other than those in respect of which that site was or could have been designated.")

The noble Lord said: This amendment deals with similar drafting points to Amendment No. 16, to which I have already spoken. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4: [Licences to carry out prohibited works, operations etc.]:

Lord Trefgarne moved Amendments Nos. 21 to 24:

Page 5, line 43, leave out ("under section 1(4) above") and insert ("designating a controlled site").

Page 6, line 5, leave out ("of an aircraft or vessel to which this Act applies") and insert ("to which the licence relates").

Page 6, line 11, leave out ("under section 1(4) above") and insert ("designating a controlled site").

Page 6, line 23, leave out ("which this Act applies").

The noble Lord said: With the permission of the Committee, I should like to move Amendments Nos. 21, 22, 23 and 24 en bloc. They are all consequential upon Amendment No. 1. I beg to move.

The Deputy Chairman of Committees (Lord Hayter)

I would point out that there is a printing error in Amendment No. 24. The word "to" has been left out. The words in brackets should read "to which this Act applies".

On Question, amendments agreed to.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

Lord Sandford

I thought it might be for the convenience of the Committee if, in the clause relating to licences, I took this opportunity to put on the record the progress that is being made in the concept of an advance general licence for dealing with the situation in international waters and enabling UK ships and companies to operate without putting them at a disadvantage vis-à-vis their international competitors. May I start by saying that I welcome my noble friend's initiative in this concept of the advance general licence? First of all, I should like him to give us an assurance that the Bill will not be brought into effect before the code of practice has been published and the general licences have been issued to those qualified to receive them. Here, again, is another case where Clause 10(2), which deals with commencement, will need to be looked at if those matters cannot be ready in time. I hope that it will be possible to give some considerable detail on these two matters at Report stage.

I have circulated to noble Lords who are taking part in this debate some correspondence which shows the state of play on these matters in some detail. But I should like nevertheless to make a few remarks to get them on the record. One of the considerable advantages, it seems to me, of the advance general licence and the associated code of practice is that they form the basis of a possible eventual international convention which is really going to be the only satisfactory way of controlling these matters in international waters. I hope that it will be possible to devise the licence and the code of practice so that it will be advantageous to foreign companies to hold these licences and to agree to abide by this code of practice.

The effect of the licence is as stated in Clause 4(1). I take it that it would—and perhaps my noble friend can confirm this—relate to the salvage of the cargo and that another, specific, additional licence would be required for the salvage of the ship's fittings and, in particular, of the trophies and things like that. It will deal in some detail with the whole concept of minimum disturbance and the reverent handling of human remains, requiring that they should not be brought up to the surface or, with few exceptions, photographed. One of the conditions of the granting of the advance general licence will be that the holder of it would give notice of his intention to enter and to salvage cargo but that that would be on the basis of commerical confidence and only divulged within the Ministry to the extent of those who needed to know of that fact.

The code of practice will cover the possible presence of an official observer and the handling of any disputes that might arise with him. It will deal with publicity, mainly to the effect that there should be none without the authority of the Ministry of Defence; and I think that it will have to deal with appeals against the withdrawal of the advance general licence. Perhaps my noble friend will confirm that those are the matters on which discussions are going on and indicate any others which he thinks would be helpful for the Committee to know about at this stage.

Lord Trefgarne

My noble friend has been rightly concerned about the position of British salvage companies. I said during Second Reading that we were prepared to grant a licence to reputable salvage companies that would enable them to salvage cargo from designated vessels without committing an offence under the Bill. There would be an agreed code of practice designed to ensure the minimum disturbance of any human remains. If any company disregarded the terms of this code, the licence could be withdrawn. As my noble friend has indicated, there have been further discussions since Second Reading to settle the content of the licence and I am glad to confirm that already there appears to be broad agreement on the basic principles.

It will be some time before we can begin to designate vessels for protection and I do not doubt that the wording of the licence will be settled long before then. My noble friend raised some general points. He asked about the status of any cargo which is salvaged under the licence. We have said on a number of occasions that this licence is not a salvage agreement. It simply lifts the shadow of the Act from the salvage company concerned so long as it observes the conditions and the code of practice. The law of salvage would still apply to its operations. Any salvage raised would remain the property of its owner and the salvor will normally be entitled to an award as provided for in the merchant shipping Acts. If a salvage company wished to enter into a separate salvage agreement with the department, we should be very willing to consider any proposal but that would be a matter for separate negotiation.

On the question of controlled sites, Clause 1(5) limits the size of area that the Secretary of State can designate. It shall not extend further around any place that comprises the remains to be protected than is appropriate. I can give an undertaking that we shall not seek to circumvent the intention behind this clause by designating more than one controlled site for each aircraft or vessel that we wish to protect unless there were substantial parts of the same vessel or aircraft in two or more dispersed locations. Since we would use the controlled site provisions very sparingly, this is not likely to be a problem.

My noble friend asked about the mechanism for challenging the retention of particular designated vessels on the protected list. We shall from time to time review the list of designated vessels with a view to releasing the earlier ones from the protection of the Bill. We would be very willing to consider any representations that interested parties wish to put to us in this regard.

I hope my noble friend is reassured by these undertakings. He will know that we have been prepared to modify our position in response to representations by salvage interests and that we are close to agreement on the general terms of a licence. At the same time, it should be on record that all concerned have expressed support for the basic purposes of the Bill. It would be unfair to suggest that the salvage world is concerned only to protect its business. It too is anxious to ensure that the remains of those who gave their lives in the service of their country should be allowed to rest in peace. I am grateful for their willingness to seek an arrangement which reflects this concern.

Lord Graham of Edmonton

So far as I and my noble friends on this side are concerned, we also are grateful for the progress which has been made and which the noble Lord, Lord Sandford, quite fairly has read into the record; because it is important that those outside the House not only hear what we have to say but also know what is the Minister's response. There is no question of bad faith or lack of good faith in what is going on; but when people outside express anxieties, even though they may not have had the experience we have of the present Minister and his advisers and their integrity in these matters, it is right that their anxieties should be placed on the record.

I wonder whether the Minister can say something about a remark of the noble Lord, Lord Sandford, concerning the licensing system, when he said that its contents ought to be drawn in such a way that there could be a sound basis for some future international convention or agreement. When we are dealing with international waters and seeking to get parity of impact of legislation, we need that. I wonder whether the Minister can tell us at this stage to what extent and in what direction attempts are being made to get some kind of understanding between our interests and those of other governments: for instance, through the European Community and in other ways. I think that would be helpful.

Also, can the Minister say something about the provisions of a licence in respect of the duties of the observer or those who have observer functions on the vessels? Can he say precisely what work they will be doing? Presumably they will need to make sure that no part of the licence has been contravened. Have they discretion to decide in certain circumstances that the manner in which the master of the vessel wishes to act is tolerable or agreeable? To what extent will they have powers to force people to desist from doing something which the observer feels is contrary to the conditions of the licence?

Lord Trefgarne

On the question of an international convention, I do not think I can add very much to what has been said previously. However, perhaps I can take some advice, and if there is anything further to add I shall be happy to write to the noble Lord.

The function of the observer will be, in appropriate cases, to make sure that the code of practice is being properly observed. As I have said on earlier occasions, the sanction we have is to withdraw the licence where we think the code of practice is not being observed. That is the way we would control the matter. I hope the noble Lord will regard that as an appropriate answer to his points.

Lord Graham of Edmonton

It is, except that, referring again to what the noble Lord, Lord Sandford, said, it is vital for the code of practice to be seen and agreed and to become operable at the same time as the issue of the licence. They are both part and parcel of the same mechanism. The code of practice needs to be agreed and is a second part of the licensing procedures. Certainly I am very happy with what the Minister has said.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6 [Powers of boarding by authorised persons]:

Lord Trefgarne moved Amendment No. 25: Page 8, line 8, at end insert ("or a person of a description of persons so authorised").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9 [Interpretation]:

Lord Trefgarne moved Amendments Nos. 26 to 32:

Page 8, line 33, after ("a") insert ("hovercraft,").

Page 8, line 37, leave out from ("site" ") to end of line 38 and insert ("means any area which is designated as such a site under section 1 above;")

Page 9, line 3, at end insert— (" "military service" shall be construed in accordance with subsection (1A) below;").

Page 9, line 7, leave out ("section 1(2)") and insert ("section 1(5A)").

Page 9, line 12, after ("voyage") insert ("including, in the case of a vessel, any aircraft which were on board)").

Page 9, line 21, at end insert— ("(1A) For the purposes of this Act an aircraft or vessel shall be regarded as having been in military service at a particular time if at that time it was—

  1. (a) in service with, or being used for the purposes of, any of the armed forces of the United Kingdom or any other country or territory; or
  2. (b) in the case of an aircraft, being taken from one place to another for delivery into service with any of the armed forces of the United Kingdom;

(1B) Where a place comprising the remains of, or of a substantial part of, an aircraft or vessel which has crashed, sunk or been stranded while in military service is situated only partly in United Kingdom waters, that place shall be treated for the purposes of this Act as if the part which is situated in United Kingdom waters and the part which is situated in the United Kingdom or in international waters were separate places each of which comprised the remains of a substantial part of the aircraft or vessel.").

Page 9, line 22, leave out subsection (2).

The noble Lord said: With the Committee's permission, I should like to move Amendments Nos. 26 to 32 together. They all relate to Clause 9. I beg to move.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Short title, commencement and extent]:

Lord Trefgarne moved Amendment No. 33: Page 9, line 31, after ("to") insert ("any of the Channel Islands or").

The noble Lord said: Again, this is a small amendment which applies the conditions of the Bill to the Channel Islands. I beg to move.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

House resumed: Bill reported with the amendments.

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