§ 7 p.m.
§ The Earl of Perth
My Lords, I beg to move that this Bill be now read a second time.
Where do I start? With hesitation and humbly, since, after all, I aim to amend a law which has been unchanged for nearly 1,000 years. But its original purpose as a source of revenue for the Crown has gone long ago. Today, it aims to preserve portable antiquities if they are of gold or silver. At least as important, it seeks to record where they are found, which may in its turn tell us something about our past history. If it is not reported, then again and again, alas, our history is irrevocably lost. I beg those who find something in the future to report it.
The law of treasure trove as it now stands is inadequate to cover the various antiquities, especially with the growth of the metal "detectorists"—if there is such a word. However, perhaps I may say at once that the Bill is not directed against them in any way. What they do is welcome, if they behave properly. I shall come back to that in more detail later.
I am not the first to try to reform the Bill. Lord Abinger, as far back as 1981, introduced a Bill a little less all-embracing than mine which passed through your Lordships' House. Sadly, it got lost in the Commons and my hope and wish and, I am sure, that of anyone who supports the Bill, is that the same will not happen if this Bill is given a Second Reading and is passed. I think your Lordships know that it will all depend on the Government's support. I know that they are not entirely happy with it as it stands today; but there is no good reason why, over the next six weeks, we do not have time to change the Bill so that it has the wholehearted support and backing of the Government. Then when it goes to the Commons, in one way or another they will see it through. My aim in this has been to listen particularly to them and to enlist their help. I do not think of it in terms of "we" and "they", I think of it in terms of all of us together trying to get the law changed.
Thirteen years have gone by since the Abinger Bill. Again and again, especially in the last few years, many of us have urged the Government to bring in a Bill; but to no avail. There has, however, been one good event in 1485 the past year. Now there is one department—the Department of National Heritage—which is responsible for the Bill. That makes it much easier. Earlier, when I was trying to get something into shape, I used to tackle various departments which in those days had some responsibility; but they clearly did not take the matter on board. The kind of answer I received was: "We are considering the whole issue" or, "We have in mind to consult all concerned". But nothing has ever come from those words. During that time, we have lost a considerable number of valuable objects and, more important or at least as important, a record of where they were found and the implications for our history.
How did I come into this? The Surrey Archaeological Society who had seen the tragedy of the pillage of their great find at Wanborough, and a little later the British Museum and all the archaeological and other societies concerned with the Bill, became desperate. They approached me, knowing that I had an interest in the subject and asked whether I would help. The result is the Bill. But it has taken five years to hatch, and that is too long. There have been endless consultations, not only with government departments but with great numbers of those associations and others who are interested in the subject. I shall return to that in a moment.
First, I wish to say thank you to all those who, over the past five years, have patiently worked on the Bill —the lawyers and everyone else—and advised us so that we have a Bill which, while it may not be entirely right, is real progress and something we can discuss and change as appropriate.
In earlier times I wanted to make it simpler in the sense that we would say "Trespassers will be prosecuted". But the Home Office would have none of it. I do not blame them; I understand the reasons, but I ask your Lordships and those concerned to realise that we had to get around such difficulties. I like to think that we have succeeded.
We have consulted endless people. For example, the Country Landowners' Association and the National Farmers Union have both shown goodwill and support. They have suggested an amendment which I shall not quote now but which is wholly acceptable for the Committee stage and will do a good deal to remove worries about the rights of landowners and others and will do something to ensure that those who misbehave will suffer accordingly.
We consulted many people. I have a list which I shall not read in full. We consulted something like 30 bodies: the Royal Commission on Historical Monuments, the Society of Antiquaries, the British Antique Dealers Association, the British Archaeological Trust. They all say they are wholly behind the Bill. Then we come to another group of bodies who, while they have not been specifically asked their opinion on the Bill, have given us their support in general. For example, magistrates, coroners, the police, the county councils and district associations. They have all indicated their support in one way or another; and if they wish to make amendments, I can only say that they are welcome. I 1486 have listed those bodies to show how widespread is the general wish that something be done. As it stands today, the treasure trove legislation is inadequate.
Earlier, I said that the Bill was not directed against those who operate metal detectors. I wish to quote from the leaflet of the National Council for Metal Detecting. It lists a code of conduct in which the first item states:Do not trespass. Ask permission before venturing on to any private land".The sixth item is:Report all unusual historical finds to the landowner".The seventh item is:Familiarise yourself with the law relating to archaeological sites".Nothing could be more acceptable than all of this—if it happened. But alas, while there are many very responsible metal detectorists, there are others who do not care and who ignore the code of conduct. Part of the purpose of this Bill is to give teeth by means of a clause that will ensure that if they do not behave—if they steal, I was going to say, which is right—then they face punishment. Clause 4(3) makes it a summary offence not to report a find of treasure. The offence is punishable by up to three months' imprisonment or a fine. That sort of deterrent is essential against the cowboys, the plunderers, the thieves—for that is what they are. They damage for ever the history of our country.
I want to touch on just one other matter before I go very quickly through the various clauses of the Bill as it stands. I have been astonished and heartened, as I am sure have many other noble Lords, by the great interest and support for this Bill among the media. The press, television and radio have all shown their interest and support. I want to thank them. I say to the Government: the people want this measure and you must help us to make the necessary changes and achieve our aim. It is a non-party matter. Not only is the Bill supported by the various Parties, but its aim, which is to save treasure and record our history, is one that is recognised by the people as being of real importance. It is for the common good. It is essential that the Bill, in amended form, should go through this House with Government support and does not suffer the fate of the Abinger Bill, but becomes law.
I should like very briefly to go over the various clauses in the Bill. The explanatory memorandum which accompanies it, in broad, tells us all that we need to know. The one point that is left out of the general paragraphs is that the Bill provides teeth for those who do not follow what they are told to do.
Clause 1 vests treasure in the Crown. It is a complicated matter that it refers just to "treasure", and not "treasure trove". I shall not go into it in detail. It was done in this way because we were advised that, otherwise, there would be problems with the Royal Prerogative. (I am no lawyer, and I do not altogether believe what I am told—or anyway, I think that there is probably a way round it.)
Clause 2 defines what is "treasure" and widens the definition. Importantly, it covers not only gold and silver but objects which are associated with the find. For example, if there is a huge hoard of coins, the copper cannot be separated from the gold and silver, as has happened to date.
1487 I need not go into all the details on the subsections of Clause 3. The clause is very important because it extends the responsibilities of the coroners; and they do not have to try to decide, with or without a jury, whether the object was buried with the intention of recovery or whether it was lost. That has caused endless difficulties and there have been endless court cases. The distinction is out of date, and the Bill simplifies that matter. Quite simply, the treasure stands on its own.
Clause 4 is very important. It is perhaps the most important clause of all. It lays down the duty of the finder of the treasure; namely, to tell the coroner. From that duty, many matters flow. Without it, anything can happen. People can simply find an object and go away with it in their pocket. But if we look at subsection (3), we see, as I have already stated, that it will be a summary offence not to report a find to the coroner.
Clause 5 lays down the duty of the coroner, who has obligation to the occupier of the land. We shall amend that clause. It is the wish of the Country Landowners' Association and the National Farmers Union to include, in one way or another, the landowner. Clause 6 states that there is no need for a jury.
The Bill come; into force three months after its passage in both Houses. It covers only England and Wales. Perhaps it is rather strange that I, a Scot, should be introducing this, Bill. But in Scotland I like to think that our system or treasure trove works. I shall not go into it. I have talked for long enough. I beg to move.
§ Moved, That the Bill be now read a second time. —(The Earl of Perth.)
§ 7.17 p.m.
§ Lord Renfrew of Kaimsthorn
My Lords, we are very grateful to the noble Earl, Lord Perth, for bringing this timely Bill before the House. It is a matter of great importance nationally. It affects what we know about our country's history and it affects our understanding of our national heritage. It is a very much needed piece of legislation which effectively enjoys the support of all heritage and archaeological bodies in this country. Perhaps that is, a sweeping statement. I shall rephrase it: I know of no heritage or archaeological body in this country that does riot recognise the Bill as a significant step forward.
As I shall indicate, the Bill goes only so far. In some ways it is less than ideal. At first sight I find the distinction between "treasure trove" and "other treasure" infelicitous. But on closer study I do not have any serious objection; it is simply a matter that requires explanation when one speaks about the Bill.
A more serious objection is that there is perhaps a need for more wide-ranging legislation to protect our archaeological heritage. However, I do not think that is to be used as an objection against the present Bill. It is simply a matter of which we should be aware.
The most important aspect is that this Bill at a serious level is not about gold, silver or treasure. In fact, I and many archaeologists are always rather unhappy at the prominence given to the concept of treasure. What it is about is our shared history in Britain and our understanding of the past, our heritage and who we are, which come from what has been discovered. The 1488 process of archaeology is to make sense out of the past through the material finds. Many of the material finds are chance finds and are portable antiquities of the kinds dealt with in the Bill.
It is the case that this country falls far behind most civilised lands in lacking an adequate antiquities legislation. We have no all-embracing antiquities legislation. One can find a Greek marble statue in one's back garden or on somebody else's land and certainly it is not treasure trove. Nor is it likely to be if this Bill is carried. We do have ancient monuments Acts which protect ancient sites and monuments. That is one area which, by the system of scheduling, listing and guardianship, is in general rather well organised through the Department of National Heritage and through English Heritage. There is also a measure of protection for sites and monuments under planning legislation.
But at present the only protection in this country for archaeological finds (objects and materials) other than those coming specifically from scheduled monuments is through the treasure trove legislation. We have no portable antiquities legislation. However, it is the case that much of what we know in this country about our ancient past—that is in fact the past before the medieval period because we have only limited documents from Anglo-Saxon and Roman times and no written documents whatever from earlier times—comes from chance discoveries of important finds, which may be gold or silver but just as often are bronze, pottery, stone or other material. It is because of the importance of those materials that the treasure trove legislation and to some extent the proposed change to the legislation are somewhat inadequate.
I remind your Lordships that one of the greatest finds, perhaps the greatest single find in the archaeology of Britain, was the Sutton Hoo ship burial, found in 1939. That has added a whole chapter to our understanding of Britain in the early Anglo-Saxon period. But that find was not treasure trove because it was clearly buried as a burial and not with the intention of recovery. Very fortunately the landowner of the day, Mrs. Pretty, behaved in the most generous manner and donated that find to the British Museum, where it remains the most important single collection of objects from our soil in the national possession. But that was not treasure trove under the existing legislation. Happily, under the proposed legislation of the noble Earl, Lord Perth, it would be classed as treasure and fall within the purview of what he proposes.
Moreover, circumstances are changing. The inadequacies in the treasure trove law become ever more pressing and ever more tiresome. That is partly because of the increasing pace of recovery, not least through the use of metal detectors. The noble Earl, Lord Perth, dealt with that matter in some detail. It is indeed the case that those persons who use metal detectors and then report the find promptly are perhaps doing a service. The very happy circumstance of the recent find of the Hoxne treasure, which was a stunning find, is a very happy case in point. Noble Lords may know the story. A person with a metal detector was hunting for a hammer which the farmer had lost. The farmer invited him onto the land 1489 and he began to find gold coins. He reported them at once to the competent authorities and a proper excavation followed.
That is the point that I want to make more than any other in my comments. It is not the objects themselves and certainly not the ownership of the objects, be they gold, silver or whatever, that matter. What matters is the information that those objects can give us about our past. In my view what truly matters is not the ultimate ownership of the materials but that those materials are reported at once and then published, so that the find becomes part of the information available to us, and in a serious sense in terms of information it becomes part of our archaeological and cultural heritage. That is what happened in the case of the Hoxne treasure, thanks to the very efficient, prompt and responsible action of the finder.
As a result of the existing legislation, we have absurd inadequacies. Your Lordships will be well aware that at present when a treasure is found it is necessary to hold a coroner's inquest on the intentions of the persons who deposited that treasure as they might have been 2,300 years ago. Did they intend to recover it or did they leave it there as a votive offering or as a burial? It is self-evident that in many cases it is not feasible to ascertain the intentions of persons who died 2000 years ago without any written indication as to what their intentions might have been. So there are coroner's inquests with little more point than determining how many angels might dance on the point of a needle. There are many unsatisfactory, time-wasting circumstances.
Secondly and equally damaging is that, at the moment when important finds are made, only those objects which are of gold or damage to our understanding of the past. Fortunately silver are declared to be treasure. The law as it stands brings about the splitting up and destruction of contexts and the loss of information through the separation of one part of the find from another. That is of great, in some cases that is avoided, for instance, in the case of the most important recent find, the Snettisham Iron Age find. Most of that find was declared to be treasure trove because most of it was of gold or silver. The bronze objects, through the generosity of the landowner, also found their way to the British Museum with the gold and silver, but it could have been otherwise.
A third consequence is that many important coin finds of great significance to our understanding of the history and past economy of the nation are not treasure trove. Most of them will be so if this Bill is enacted. It is also relevant to point to the pace of looting, as I did a moment ago. There have been some very serious incidents, such as that of the Icklingham bronzes, where an important collection of Roman bronzes was looted from a site without the knowledge of the landowner and ended up in New York in very murky circumstances. It is a very sad story. It is said that the owner intends to bequeath those objects ultimately to the British Museum. In any case, the point that I make is that the information which would come from a proper assessment of those objects has in large part been lost.
1490 As I said, it is information and not ownership which is of the greatest importance. That has recently been recognised by the Council for British Archaeology, the Museums Association and the Society of Antiquaries of London, which last year produced a statement of principles on portable antiquities. I should like to draw the attention of your Lordships to that statement of principles because it illustrates how much more is needed than the present Bill, though happily the Bill conforms with those principles and will be a step in the right direction. Those leading and eminent authorities pointed out that:In Britain today there is no coherent statutory provision for the management of our archaeological inheritance. Britain's archaeological inheritance is a unique resource for the study and understanding of human history … In England and Wales, only Treasure Trove, limited to certain gold and silver finds, provides any requirement for finds to be recorded or studied. There is no other legislation relating specifically to portable antiquities. This omission is illogical. It is contrary to the public interest: an interest which rests in opportunity for public knowledge of our national history".The five principles are then set out:1. The archaeological inheritance is an entity. Archaeological structures and objects form an essential part of the archaeological heritage. Therefore portable elements of our heritage should be accorded a status in law which is commensurate with their importance".I may add that in most other countries of Europe they are indeed accorded such a status. It continues,2. The archaeological inheritance is irreplaceable. The nation should seek to ensure that all aspects of its inheritance are subject to appropriate stewardship.3. All archaeological material has a potential to contribute information which will help to retrace Britain's history. There is thus a valid public interest in the reporting by a finder of items which are found by chance.4. The purpose of such reporting is to allow competent recording of information. Such reporting should be made a legal obligation upon the finder (as is currently the case with Treasure Trove), and failure to report should be an offence".It goes on to suggest that,The Crown should wish to retain material of national or regional significance in museums, for purposes of study and public display. Where the Crown retains material, a financial award may be made to the finder and/or landowner".Of course that is the practice with treasure trove today; that is, that financial rewards to the full commercial value of the finds are made to the finders if the Crown retains those finds. It also states that,In the case of material which it is not in the public interest to retain, the Crown would normally wish to reassign title to the finder or landowner".That is the ideal. But it would present some difficulties. It would require staffing in the sense of who the finder would report the materials to. For that reason the Council for British Archaeology, the Society of Antiquaries and the Museums Association have not sought to bring forward legislation to change the position, though I hope that that day will not be far off.
However, as the noble Earl, Lord Perth, showed, this legislation brings a number of benefits with it. First, we would be saved the absurd squabbling as to whether the person burying the treasure intended to recover it. That is something that in general we simply cannot know. Secondly, it would avoid the splitting of finds. If there is a treasure which contains gold and silver then the entire treasure—including the pottery, the bronze, the bones; the whole enterprise—would be part of the ensemble, and that is the only reasonable way of 1491 proceeding. There are other merits, but I shall not take up too much of your Lordships' time by going through them. It seems to me that those are the two principal merits of the Bill.
I had hoped that the Government would support the Bill outright. The noble Earl, Lord Perth, was extremely modest when he indicated the wide range of authorities whom he had consulted. He certainly alerted the Department of National Heritage at its inception on 1st April last year. I was sorry to learn from him the likelihood that the department, in the presence of my noble friend who will speak in a moment, may not feel able to embrace the Bill as it stands. I should of course be delighted if my Ahnungen, my uneasiness, in this matter were refuted by my noble friend Lady Trumpington standing up and saying that the Government are delighted to support the Bill in every way. But I suspect that I shall be disappointed in that regard.
However, in my view the Department of National Heritage ought to support the Bill because it is very much the business of that department to be concerned with the issues that I have raised. Moreover, there was hope—I trust that I am in order in quoting the words of a Minister of the Crown in another place on 27th October 1993—when the Parliamentary Under-Secretary of State for National Heritage, Mr. Iain Sproat, in summing-up in response to a question, said,But treasure trove has severe shortcomings in its present form. It relates only to objects with a substantial gold or silver content, reflecting its origins as a means of raising revenue for the Crown rather than furthering archaeological research. Even when objects of base metal are found closely associated with gold and silver objects, they cannot be declared treasure trove, whatever their potential archaeological importance, and even gold and silver objects ale treasure trove only if they were deliberately hidden with the intention of later recovery—a point that may be virtually impossible to decide after 2,000 years or more.We recognise these inadequacies and are considering proposals for a private Member's Bill to reform the present law … put forward by Lord Perth and the Surrey Archaeological Society, with support from the British museum. As my right hon. Friend made clear to the sponsors of the Bill earlier this year, we felt unable to support some of their original proposals, but detailed discussions are now under way and I certainly hope that it will be possible for us to give our support to a modified package before long". —[0ffic, a1 Report, Commons,27/10/93; col.951.]If the Government are not able to give that support, I should like to know the reason why. The noble Earl, Lord Perth, has been assiduous in his attempts to meet every point raised, not only by the Department of National Heritage but by the Home Office, the Treasury, the Treasury Solicitor and even by the Foreign Office. It is my view that the Department of National Heritage should have been sorting out those problems for the noble Earl. But though he spoke with the greatest mildness and generosity, he did not say that the Department of National Heritage had sorted out the problems and I fear that that may indeed be the case.
I look forward therefore with the greatest interest to what my noble friend Lady Trumpington will say. I have spoken for too long, but I should like to mention two more points. First, I should like to quote from a letter written by Professor Cunliffe, a professor of archaeology in Oxford, to the Independent last week. More significantly, he is president of the Society of Antiquaries. He said, 1492Lord Perth's Bill may not go as far as many may want, but it will be a dramatic improvement on our present medieval laws and will move antiquities in England and Wales a little closer to the state they enjoy in most of the rest of the civilised world".Finally, I was formally asked by the Trustees of the British Museum—I am one of their number—to inform your Lordships that this Bill has their unequivocal support.
§ 7.36 p.m.
§ Lord Templeman
My Lords, your Lordships will deduce from my high place in the order of speakers, for which I am grateful, and also from my semi-funereal uniform, that I have a long-standing and official engagement which will prevent me from being here until the end of the debate. I tender my humble apologies and beg to be forgiven. I am also authorised to say that my noble and learned friend Lord Hailsham approves the principles and present details of the Bill and hopes, as do we all, that it will be given Government backing.
The law of treasure trove is notoriously uncertain and eccentric. The Bill does not replace the law of treasure trove; it supplements it in a way which will get rid of some of the very oddities which now cause anxiety. For example, treasure trove is limited to gold and silver articles which are hidden in the earth or "other secret place", the authorities say, with the intention of their being recovered. Therefore if articles have been lost, abandoned or, as the noble Lord, Lord Renfrew, said, found in a grave from where there was no intention that they should be recovered, then nothing can be done about them and they can be destroyed, sold or reposed in bank vaults by some misanthropic millionaire.
The Bill applies, by Clause 2, to coins, which are precious metal; to plate or jewellery which have at least 5 per cent. by weight of precious metal—precious metal being defined as gold and silver—provided that they are or appear to be,at least 200 years old when found".There is one important addition; that is, it applies also to objects at least 200 years old where the Secretary of State has by statutory instrument designated its being a. class of object which he considers to be of,outstanding historical or archaeological importance".The whole thrust of the Bill therefore is to preserve the national heritage and articles which really belong to the nation. It will only apply to some articles which have been lost for 200 years. In that sense no finder who stumbles upon them can really claim ownership and no farmer who bought his farm and paid a price for the agricultural content of it can really claim that he is an owner and is entitled to all the benefit of all the articles found on his soil. This is a preservation of the national heritage for our posterity.
I am not myself aware of any defects in the Bill. I understand that some nervousness has been expressed on two grounds; first, what is said to be an extension of the prerogative of the Crown; and secondly, what is said to be some possibility of ownership. So far as concerns ownership, your Lordships will see that under Clause 2(3):An object is not treasure … if its owner at the time immediately before it came to be in the place where it is found, or his successor in title, establishes his title to the object".1493 So the Bill is really confined to articles which for 200 years or more have given up the ghost so far as concerns ownership.
As regards the Crown, the prerogative of the Crown is rightly preserved in relation to treasure trove by Clause 2(2). I apprehend that what is meant by the extension of the prerogative is the fact that Clause 1 vests treasure in the Crown. I do not consider that to be an extension of prerogative. It is Parliament saying to the Crown, "Will you please take over these objects?" The House should not be nervous about giving this title to the Crown because it is quite clear that the Crown takes it on only as trustee. The Crown will, as with treasure trove, consider the merits of persons who find and will make ex gratia payments, as they now are, in relation to treasure trove. The whole object is that the Crown, through Ministers and through the Heritage Department, will be able to ensure that these objects, having been lost by our ancestors, are preserved for our posterity.
That is the whole object of the Bill. If there are any defects in it, as my noble friend Lord Perth said, they can be corrected in Committee. With the massive support that has been obtained from all quarters and with the present unsatisfactory state of the law, I very much hope that the Bill will be given a fair wind and that we shall get some results after what have been years now of endeavour.
§ 7.42 p.m.
§ Lord Broadbridge
My Lords, like others before me, I congratulate the noble Earl, Lord Perth, on bringing forward this highly important Bill; indeed, one might almost say this precious Bill. When considering a subject I find it a good discipline to proceed from the general to the specific. So, first, I ask myself why is treasure important? I believe there are two principal reasons. First, but rarely most importantly, for its intrinsic value in its content of precious metal or metals. But, secondly and most importantly, for the information which scholars and others working in the field in museums, galleries, institutions, universities and members of the dealing profession can obtain about our island's history, principally its people, their customs and skills and their distribution of population.
Then I ask myself why this Bill is so important. It is important because it is estimated that some 2 million "portable antiquities" are found each year in Britain by some of the 20,000 users of metal detectors, quite apart from structured, methodical and fully reported architectural excavation. One of two things happens; the finds are reported or—as happens in the majority of cases—they go unreported and are sold on. I should like to deal first with what now happens if they are reported.
The relevant law is that of treasure trove, under which we have laboured since mediaeval times: I was going to say "since time out of mind" but find as a non-lawyer that this means on or before 1189, the commencement of the reign of Richard I. I am not aware of the precise date of the treasure trove law, if indeed there is one, but its purpose was to fill the royal coffers. For reasons which seem opaque to me, any item 1494 substantially of gold or silver left with the intention of retrieving it later became the property of the Crown, while that deemed "abandoned", including burials, went to the finder. The Daily Telegraph, in a substantial article on 2nd March last, quoted Dr. Ian Longworth, the British Museum Keeper of Prehistoric and Roman British Antiquities, as saying:It is absurd to think that we can today understand the motives that led their owners to bury objects such as gold torcs several thousand years ago".This Bill will greatly assist coroners' inquests by deeming all items clearly specified in Clause 2 as treasure without dereliction of designation as treasure trove or of the Royal Prerogative over such items. Therefore, if I dig up something, it may be treasure trove as mediaevally defined, but if it falls within Clause 2 it is treasure and all the strictures of the Bill and powers of the law protect it. Some who have given the Bill a cursory reading only have commented that a weakness lies in the fact that precious metal content is required. But that is not so, for subsection (5) of Clause 2 empowers the Secretary of State by order made by statutory instrument—this, I understand, to be an affirmative resolution of Parliament—to designate as treasure any class of objects at least 200 years old which he considers to be of outstanding historical or archaeological importance. I further understand that this is not a Henry VIII clause.
I am very glad that the noble Earl has specified a time as recent as 200 years ago in his Bill. It is, I believe, a common misconception that the older something is, then, more or less automatically, the greater is its importance. I, my Lords, am an amateur silversmith and now show you a ring I made containing a William the Conqueror silver penny. At their auction Christie's did not give it away, but there was much coinage in the Conqueror's reign, whereas I believe coins of subsequent and sometimes much later reigns are far rarer and consequently more important and, for that matter, expensive. It is said that Spencer Churchill, the great collector of antiquities, on being introduced to another collector used to ask, "Are you a BC or an AD man? I'm a BC man". Perhaps he thought himself rather superior in being a BC man, but I think it is very important that we should not lose sight of AD, and particularly more recent AD, in terms of our island history. There is much treasure in AD, not least in comparatively recent AD.
I earlier asked the rhetorical question as to what happens when a detector operator discovers something, and have just now endeavoured to answer what happens when the find is reported. However, in what is believed to be the majority of cases, the find is unreported and the object is sold on. There are perhaps two reasons for this. First, the finder is aware that he or she is trespassing under the potential penalties of the law of trespass. This is in itself an offence, and it means that the finder will never gain title to the find. Secondly, the finder has a muddled appreciation even of the law as it stands at present; that is, the law of treasure trove alone. Under this, if declared treasure trove, he will get the market value of the item, or its return with legal title to keep or sell if not wanted by any museum or comparable 1495 institution, and its return and legal title if not. The finder can expect a far better price on sale with legal title than will result from sale to shadowy dealers where both sides are aware of its illegal possession.
The great sadness of a treasure being unreported and smuggled out of the country is that it is important to us here for our understanding of our island's history. Its relevance and likely scholarly study once it leaves our shores for another country is greatly diminished. After all, the find is probably not part of their history and, if studied at all, will be with a rather detached intellectual interest largely divorced from the additional emotional adrenalin that significantly butters our own scholars' bread. This Bill will, I hope, be a great deterrent to such illegal export.
A key element of the Bill is that the definition of treasure supplements and greatly enlarges the category of property falling within the protection to scholars of treasure trove by defining a new property of treasure, combined with the: legal reporting strictures of Clause 4 which, in paraphrase, are first: to report it, and, secondly, to do so within four weeks, failing which up to three months in prison is risked or a fine of up to level 5—that is, £5,000—or both. Thus this excellent Bill puts teeth into the law of treasure by greatly widening the property under protection and requiring almost immediate reporting. Additionally, Clause 5(1) of the Bill requires that the coroner shall:within a reasonable time inform the person whom he reasonably believes to be the occupier of the land that the property has been found on the land",and, in subsection (2) (b) of that clause, the latter has to be given,a reasonable opportunity to appear at the inquest",which, as per Clause 6, may be without a jury. Also, for the avoidance, of doubt, if the circumstances of the find indicate the possibility that the find might be treasure, it will be assumed to be such until an inquest determines otherwise or the legal owner comes forward. Thus, this Bill seeks to remove the grey area of doubt rather along the familiar lines of the declaration of income to the Inland Revenue that if you are in any doubt you should declare it.
Importantly, the Secretary of State may publish a code of practice for the guidance of finders, museums and other relevant parties. By doing this the Secretary of State would both shed public light on a dim and confused area and greatly increase awareness of this legislation. I certainly hope that this would be done.
In conclusion, I wish to emphasise the support given to this Bill by leading bodies. That the Bill is being backed by the British Museum speaks volumes. Additionally, as other speakers have mentioned, it is supported by the Council for British Archaeology, the Museums Association, the Society of Antiquaries of London, the Royal Numismatic Society and the Country Landowners' Association. Many antique dealers are said to support it and the National Farmers' Union, when last contacted 18 months ago, were behind it. The Magistrates' Association and the chief police officers' and coroners' bodies support it. I feel rather humble in saying that I too support it. Although the weather in another place may be stormier, I hope that your Lordships will give this Bill a fair wind. I wish it well.
§ 7.52 p.m.
§ Lord Stewartby
My Lords, I must first apologise for batting out of order. There seem to be two different lists in circulation this evening and I must have got hold of the wrong one. But I am grateful to those who have allowed me to speak at this point.
I am certainly not an amateur silversmith like the noble Lord, Lord Broadbridge, but for many years I have had an interest in this subject. If I mention one or two of the capacities in which that arises it is purely to demonstrate that, coming from all the different directions that one can to this complicated subject, I have come clearly to the conclusion that this is a Bill which ought to be supported. I have the honour to be chairman of the British Academy Committee for Sylloge of Coins of British Isles. I am also an advisor to the National Art Collections Fund which frequently assists museums in acquiring objects which come forward as treasure trove.
But, from a different angle, since childhood I have been a collector of coins and have written about them. Also during many years in another place, because of these interests, I have found myself the recipient of views on the subject from all kinds of people outside the archaeological establishment. One of the strongest views which was expressed some years ago was that it was not right for the British Museum to be the arbiter of value in respect of objects of treasure trove which the museum itself wanted to acquire. That seemed to me to be a reasonable position. I am glad to say that almost 20 years ago I was able to persuade the noble Lord, Lord Barnett, who was then Chief Secretary to the Treasury and responsible for these things, that it would be sensible to set up an independent body to deal with valuations.
The Treasure Trove Reviewing Committee which has fulfilled that role ever since has, I believe, completely removed from debate some of the more contentious aspects which had arisen hitherto when there was questioning as to whether the valuation of objects had been correctly carried out. Whether or not that was true, if the perception was that rewards (ex gratia payments) were not adequately reflecting market value, then that would be an incentive to some not to declare their fines. I want to take this opportunity of expressing my own appreciation of those who have served on the Treasure Trove Reviewing Committee in recent years because I believe that they have removed that area of contention from the scene.
I congratulate the noble Earl for bringing forward this Bill and thank him for the enormous amount of work and effort which he has put in in bringing it to this state. It is an exceedingly complicated subject. I hope that he will not be embarrassed, but I greatly admire his ingenuity in bringing forward the definition of "treasure" alongside that of "treasure trove". The practical problems of altering the definition of treasure trove itself in legal terms are considerable. It may be that we shall now have a Bill which will achieve the right result without having to open the very complicated issue of the definition of "treasure trove" itself.
1497 Of course, the definition of "treasure" will frequently overlap that of "treasure trove" and that is well understood. But it is very important to bring within the ambit of the law those anomalous cases where, for example, a hoard of coins consists partly of coins containing precious metals and partly not—associated objects and so on; or there is some doubt as to whether the coins had a sufficient element of precious metals in them to justify them as treasure trove at all. I believe that the noble Earl's solution to that by setting up a definition of "treasure" alongside that of "treasure trove" is extremely ingenious. I hope that it will commend itself not only to your Lordships' House, but also to another place.
There are one or two practical questions which I would like to raise and to which I hope that my noble friend will respond when she winds up at the end of this debate. I have had it said to me in the past week or two that there is a possible danger that this definition is too all-embracing and that it might cause too large a number of individual objects to be defined as treasure and therefore bring them into the full processes of the proposed legislation with penalties, reporting and many other things. I have no idea whether or not such comments are justified, but since the Government have clearly paid careful attention to the proposals put forward by the noble Earl, I hope that they may have made some assessment of whether there would be a problem in the sheer number of objects.
The noble Earl mentioned that there is a different system of treasure trove in Scotland. I remember some years ago discussing this with, sadly, the now deceased Robert Stevenson, who was a very distinguished Keeper of the National Museum of Antiquities of Scotland for many years. I asked him how the Scottish law worked in relation to the very large range of objects to which it potentially could be applied. His answer was that in Scotland they took a pragmatic view about the implementation of the law. He thought that it did not really matter whether they tacitly waived rights over a whole range of objects so long as they had the ability to apply the law to those objects which came to their knowledge and which were of historical, archaeological or cultural importance. I do not know whether the same would apply in the case of the noble Earl's Bill if it were implemented in England. Clearly, the size of England and the amount of activity in the South East of England would be very different from that in the Scottish context. But it is a question which I hope that my noble friend can help us on a little later on.
The other matter that I should like to ask about is whether it is the Government's view that the proposals would require an increase in staff at the British Museum. I am very sympathetic to the members of staff of the British Museum's coin department because under the existing treasure trove arrangements, they receive enormous quantities of coins and have the prime responsibility for recording them. They take the opportunity to make acquisitions, but only of a very small fraction of those which pass through their hands.
I should like at this stage to pay a compliment to Dr. Andrew Burnett, the Keeper of Coins and Medals at the 1498 British Museum, who is making strenuous efforts for his department to catch up in its work on the publication of hordes. It is a sad fact that some very important hordes that were found some 20 or more years ago have still not received adequate publication. Students of those series are seriously handicapped if such information (although retrieved under the present treasure trove arrangements) is not disseminated and published within a reasonable period.
I mention that not because I want to cause serious embarrassment to the British Museum, but merely because it is one of the more serious complaints which over the years that I was a Member of another place I used to receive from many people outside. As I have said, I know that the museum is now making great efforts to catch up, but the question then arises of whether widening the definition of treasure trove will increase the amount of work that has to be carried out there. If that is likely to be the case, I hope that the Government will look sympathetically at strengthening the numbers of those required to do it.
As my noble friend Lord Renfrew said, some of the main problems with metal detecting arise when finds are not reported, particularly in the case of scheduled sites. The other great mischief is trespass, when those who find objects are reluctant to reveal the provenance of their finds because they should not have been at the place of discovery. I was encouraged by the noble Earl's comment that his Bill would make it much more difficult for the cowboys in the metal detecting fraternity. I hope that it will serve to track down not only the objects, but also information about where they were found and in what context. The context is enormously important. Perhaps I might illustrate that by saying that in my own area of interest, which is the first century of English coinage (the second half of the seventh century and the first half of the eighth), almost the only clues that we have about in which of the early Anglo-Saxon kingdoms the coins were produced is where the coins are found. The find spots of the objects are enormously important. If they are not preserved at the time of discovery, they can rarely be discovered afterwards.
The other point about the importance of context is that the value of hordes lies not only in the fact that they contain rather larger numbers of antiquities than those found singly, but also hordes provide vital information for the relative dating of objects because, on the whole, hordes (particularly of coins, but also of jewellery and other items, not to mention pottery and other associated objects) tend to be of similar date. A picture of the chronology, which can then be used for dating archaeological sites more generally, can often be built up as a result of the accurate recording of coin hordes. Therefore, I strongly support the intention behind the Bill to encourage greater reporting and recording of discoveries.
There have been times—I do not know whether this still applies—when those who use metal detectors have got something of a bad name for themselves in archaeological circles. That is not surprising if they have been engaged in looting, because in those circumstances they deserve it. But many of those who use metal detectors do not deserve such censure—in fact, they 1499 have added greatly to our knowledge. They have added to the repertoire of material on which we work. The information that they have provided about find spots and associations of objects and coins has been exceedingly valuable. I should like to think that this Bill, if it becomes an Act, will encourage still greater co-operation between archaeologists and what I think one should call "meta: detectorists". The two should not be frightened of each other.
I was astonished to read last week, in one of the newspapers which covered this subject, about the Surrey Archaeological Society which had carried out an excavation at Wanborough and published information on it. Somebody with a metal detector had then come along and found the largest-ever horde of Iron Age coins two feet from where the society had been digging. Does nobody in the Surrey Archaeological Society have access to a metal detector? Should not archaeologists themselves take the trouble, if not before they excavate —although that might be very helpful—at least before they make known the location of a site, to apply such techniques to see whether areas of the site should have been given more mention in the first place?
I hope that the Bill will proceed. I hope that it will get through your Lore ships' House and another place. If by any chance it does not, either through lack of time or for any other reason, I very much hope that the Government will recognise that the support which the Bill has attracted represents a strong wish that legislation along these lines, if not exactly that in the noble Earl's Bill, is urgently needed and that they might then come forward with legislation themselves.
§ 8.7 p.m.
§ Viscount Hanworth
My Lords, other speakers have already stressed tie limitations of the law of treasure trove which is centuries old and was designed only for the purpose of lining the king's pocket where possible. For that reason, I should like briefly to relate the story of Wanborough which is a known Romano-British site just outside Guildford, lying north of the Hog's Back. Here in 1983 some responsible metal detectorists found that there were Iron Age and early Roman coins and they correctly reported that fact.
If I may digress, I would remind your Lordships that many, indeed the majority of metal detector users are highly responsible people who record their finds and report them. They can be invaluable members of an official excavation; for example, by scanning spoil heaps for small finis which could otherwise slip through the net. In very many localities nowadays there is active co-operation between metal detectorists and archaeologists to their mutt al benefit.
However, sad to say, in the Wanborough case the Surrey police soon became aware of people who were battening onto this with more sinister intentions. Unfortunately, when a coroner's inquest was held in 1985 the coroner inadvertently gave out in open court the exact location where the treasure had been found. From then on the site was raided by a new breed of treasure hunters who descended on it in droves, to the great distress of the landowner and local residents. They called themselves 'night-hawks" and it was evident that 1500 some of them had been hired to do the job. They went on digging through the summer and autumn nights despite creditable police vigilance and even while a controlled excavation with electronic wiring was set up.
Something in the order of £2 million-worth of gold and silver coins were removed and dispersed across Europe and into America. The site turned out to be a Romano/Celtic temple; the coins were earlier than the temple by over a hundred years. They seem to have come from outside it; from ground which had been so thoroughly churned up that it was impossible to decide for sure what, if any, the relationship had been. The coroner's inquest decided on the balance of probabilities that they were treasure trove. In the subsequent rescue excavation rare and elaborate bronze priestly regalia, some of it quite unique, was recovered from inside the temple; more may have been lost. Since it was made of bronze it would not have counted as treasure trove, so the finds could have been split up. Treasure trove may be only gold or silver; the requisite precious metal content has been debated very often. The noble and learned Lord, Lord Denning, once laid down that it should be as high as 50 per cent, which is not practical in many cases.
Splitting a hoard into what is precious metal and what is not is only one of the many anomalies of the present system. One of the most necessary reforms is the proper recording of all finds. If relevant facts are placed on permanent record scholars can build up realistic accounts about the past. But if things are dug up in secret and disposed of equally secretly the loss to knowledge cannot be calculated. The irony is that the individual metal detectorist is often unaware of the true value of the object he finds.
It was in 1989 that the Surrey Archaeological Society became convinced of the need for further action. In July of that year one of the Wanborough convictions was quashed on appeal on the grounds that the trial judge had failed to make clear to the jury that in a criminal trial the standard of proof required in a civil court was insufficient. Therefore, any presumption available in the coroner's court as to treasure trove or as to the Crown's entitlement did not apply in criminal cases. That decision would leave only the option of a prosecution for theft from the landowner under the Theft Act. But this is fraught with difficulties; at Wanborough part of the site was private farmland and part was a county council footpath. Formerly it was an offence to conceal treasure trove but this was abolished by Section 32(1) (a) of the Theft Act 1968. In theory, such cases would still constitute theft but in practice doubts concerning ownership and establishing mens rea have meant that prosecutions have either failed or not been attempted, even in the most extreme cases.
In October 1989 a letter to The Times was written by the then president of the Surrey Archaeological Society suggesting that, although earlier attempts at reform had not succeeded, it might be time to try again. Among the replies that came back was one from a judge who had been involved as counsel in one of the Wanborough cases at Kingston Crown Court. While agreeing the correctness of the appeal decision, he wrote: 1501This does not mean that I and other members of my profession do not support your point of view; on the contrary, we do. The law of Treasure Trove seems just as arbitrary and absurd to us as it does to you. There is no doubt now what the law is, and how totally inadequate it is for the protection of our heritage. You should use this case as a goad to prod our rulers out of their disgraceful inertia, and good luck to you".The point remains that if the Bill is not passed there will be a delay, which almost certainly will be three years. During that time a great deal of our heritage will be lost permanently.
§ 8.15 p.m.
§ Lord Renton
My Lords, I shall deal in a moment with the interesting comments made by the noble Viscount, Lord Hanworth, on metal detectors. I too warmly support the Bill and congratulate the noble Earl, Lord Perth, on the trouble that he has taken to get it into print, and to present it today in such an interesting way.
I express my main reason for supporting the Bill slightly differently from noble Lords who have spoken. The ancient law of treasure trove is not only artificial but has only one main original and continuing purpose; that is, theoretically, to enable the Crown to acquire gold and silver. Its purpose was decided upon in the reign of King Richard I—Coeur de Lion—because at that time and until 1914 we were on the Gold Standard. Gold was the foundation of our currency and of our economic credibility and it was helpful for the Crown to obtain gold.
Of course, silver and copper were also part of the coinage. However, over the years, experience has shown that to say merely that the Crown shall have the right to gold and silver when it is found in certain circumstances is an artificial and narrow way of protecting the heritage.
Much else besides gold and silver which has been buried in the earth of England and Wales during the past 5,000 years is of historic, archaeological and even artistic value. One does not want to be legalistic in this matter because that will get us nowhere; but the items should be regarded as Crown property or public property which should be put on view in museums to which the public have access. Displaying such items in museums for the benefit of the public is especially important for the understanding of our past by future generations.
The fact that metal detectors have been used increasingly during the past 30 years is incidental. The Bill would be necessary whether or not metal detectors had been discovered. Let us consider the part that metal detectors can play, as did the noble Viscount, Lord Hanworth, with a vivid illustration. They can play a most valuable part or they can play a part which has the opposite effect. I am glad to say that today the All-Party Arts and Heritage Group, of which I am an officer and which supports the Bill, visited the Museum of London. The people who run the museum told us that they have a good understanding with people who use metal detectors in the Inner London area. I assume that includes those who are working on the banks of the Thames. The Bill could help those who use metal detectors, because Clause 8(3) (c) deals with the opportunity for the finders to receive rewards.
1502 I turn to the treasure trove law, which is artificial and unsatisfactory. The Crown has no right to the property unless it was hidden in the earth with the intention of recovering it. As was said by my noble friend Lord Renfrew in his most telling speech, it is generally impossible to say what was the intention of the original owner who may have been dead for 2,000 years. Coroners have overcome that difficulty in many cases when in doubt and have applied the principle of a prima facie presumption that the treasure was indeed originally hidden with a view to being dug up at some later stage. Of course, in those circumstances, the finder is frequently unable to rebut that presumption.
The artificial distinction which applies to treasure trove will not apply to the new concept of treasure as described by the noble Earl because Clause 1 provides that the property which is in treasure would vest in the Crown irrespective of where it was found and the circumstances in which it came to be there. Therefore, that would overcome a great difficulty which has existed in connection with gold and silver.
We shall have to consider Clause 2 very carefully in Committee. It provides a definition of treasure. One might have hoped that all objects of outstanding archaeological, historical or artistic importance would be treated automatically as treasure. But in Clause 2(5) and (6) we find that such objects will need to be described in an order to be made by the Secretary of State and approved by affirmative resolution of each House. We are placing that important definition into secondary legislation. My opinion is that it would be much better to write as much as possible of that definition into the Bill.
Clause 5 provides that the coroner must inform the occupier of the land that the property has been found there. But the Country Landowners' Association and the National Farmers Union have suggested wisely that the owner of the land should also be informed of the find. I suggest that that should be the responsibility either of the coroner, as has already been suggested, or when the coroner has told the occupier, the occupier might have responsibility for telling the owner; or it may be that we could even give the finder a responsibility in that matter. That is a point which we may wish to consider in Committee.
The National Farmers Union has made another good point by suggesting that no ex gratia payment should be made to any finder who is a trespasser. That is fair enough. I suggest that could be written into the Bill instead of being included eventually in a code of practice which the Bill envisages at present.
I most earnestly hope, as do other noble Lords, that the Government will support the Bill although I concede that Ministers may well wish to table amendments in the light of advice given to them. I have studied some of the advice given by eminent Civil Service lawyers, but I find the arguments somewhat legalistic and unhelpful and in one or two cases, I do not believe that the law has been stated correctly.
This Bill is in the public interest which the Government have a duty to protect. The fact that it is so widely supported by every speaker so far in your Lordships' House, by the British Museum and the 1503 Museums Association, by the CLA and the NFU, by the Council of British Archaeology, the Society of Antiquaries, and the Royal Numismatic Society must carry weight. It will be interesting to hear what my noble friend Lady Trumpington has to say in answer to the arguments put forward this evening in favour of the Bill.
I ask my noble friend what is the point of having a Department of National Heritage unless it does something to protect those parts of our heritage which are at risk of vanishing. This Bill or something like it would protect our heritage in vital respects.
§ 8.25 p.m.
§ The Earl of Lytton
My Lords, I warmly support the Bill and I am extremely grateful to the noble Earl, Lord Perth, for giving us an opportunity to discuss it this evening.
First, I must declare an interest as a landowner. On the land that I own there are several ancient monuments and I am also a member of the Country Landowners' Association. I live in a 300 year-old house which has been in my family for 237 years. I am not sure whether that makes some of the odd bits and pieces that I find in it subject to the provisions of the Bill regardless of how they come to be there. But I support the Bill because it gives us an opportunity to knock some sense into a situation which is manifestly unsatisfactory. Grave-robbers and bounty-hunters, like loose cannon, having no obligations or co-responsibility, have been with us for centuries and the present day has merely added a technological dimension to that.
As always. it must be said that it is the few who prejudice the interests of a larger number of responsible members of the public who pursue their pleasure by using metal detectors. It is an opportunity also for the House to consider which artefacts may be considered to be treasure arid, therefore, rightly belong to the nation and perhaps also those which do not necessarily belong to the nation but which may belong to individuals.
I was not quite sure that I understood correctly the noble and learned Lord, Lord Templeman, but I believe that he was referring to items which had been lost for 200 years. As I read the Bill—and no doubt noble Lords will correct me if I am wrong—it is if the item is 200 years old when it was found, regardless of when it came to be lost, which could be much more recent.
There are several personalities in this situation. First, there is the finder whose direct labours result in the discovery of artefacts. I make no comment on the motives which may have led to that. Secondly, there is the state, which ha; a legitimate interest in ensuring that important artefacts are kept so far as possible—and I put in that qualification—within the country and, more particularly, that their locational relevance is established and categorised. Thirdly, there is the property owner on whose land the find is made. We should not forget him, and noble Lords will forgive me for flying that flag. He is the one enduring personality and it is often through that personality that the relevance of a find may be validated, authorised or otherwise put in context from a standpoint of local knowledge; and that should not be forgotten.
1504 The finder has no locus standi unless he has asked the permission of the person on whose land—and I include buildings in that—he is carrying out a search. Otherwise, quite honestly, he is a trespasser and a thief. The Bill goes some way towards covering my anxieties about that and I support in particular the points made by the noble Lord, Lord Renton, in that regard.
The state has very little governance over that of which it has no knowledge. I have some anxiety about a blanket declaration of ownership and the degree to which that has effect where it is circumscribed by what amounts to its own ignorance. Also, if it cannot engender the necessary respect for authority in terms of its controlling powers, it does not carry with it the necessary measure of practical expediency.
The landowner is the person with the longest standing enduring economic, managerial and legal interest and I do not believe that he can be eliminated from the calculation. He is the fixed object of legal and managerial relevance in all this. It follows that if good practice is to follow the law, the legislation must ally itself with the person or body which has the long-term, on-site commitment.
We were given earlier the example of the circumstances near Guildford, which I must say fill me with great concern. That is a typical example of where no one is in overall control of the site. However, who other than the landowner can give access, provide that essential additional information and have possible access to estate records which can throw light on the relevance of the find and, apart from anything else, validate the claim as to where the artefact might have been found? Archaeologists, on their own admission, are not omniscient: they can be misled by the information that is given to them. There are great gaps in our knowledge generally on archaeological matters, including the extent or even the existence of sites and their relevance. I must say that the idea of putting everything in a museum is really not an answer: it is a collectivist approach which I for one—bearing in mind the fact that I am a proud custodian of all sorts of things from family papers to individual artefacts—cannot accept.
Who takes responsibility for the consequences of a find? Well, perhaps it came from a previously unrecorded site. In terms of land management and maintenance, what will happen in the future? Who will make the investment in the land management to procure the security of the site and ensure that it is properly investigated for the future? The site itself may be a great deal more important than the odd item that is actually dug out of it. To create a dislocation of the find from the actual site and from the stewardship which comes with the long-term ownership (together with the obligations that that carries) is an important point which should not be missed. If the artefact is not in the event related to the site, it must be looked at on its own merits as to whether it is something that should be retained for the nation or whether it should rightfully be the property of an individual and so on. Good voluntary endeavour in the public spirit does not come from a process of legislative exclusion. That point cannot be underscored too heavily.
1505 The Bill seeks to control what is currently something of a free for all. That is very welcome. If I have any criticism at all, it is that the Bill does not reflect the essential interest of the property owner. I was especially glad to note the comments of the noble Earl, Lord Perth, on the points raised by the CLA with him and on the views of the NFU, which I also support. Both can be dealt with during the later stages of the Bill's proceedings.
In terms of the Bill as expressed in Clause 1, I have some difficulty about the circumstances in which items might be found, especially where they relate to domestic property—for example, a house or a garden, especially an old one such as the one in which I live. I believe that it may be wrong in principle and that it may be unenforceable in practice if the law seeks to make the property of the Crown that which comes within the domain of the private residential occupier. It is a different situation if it occurs in open countryside. There should perhaps be a distinction in that respect. However, that would not be fatal to the Bill. The circumstances of a find are important. I do not think they can be dealt with by a catch-all provision.
Clause 2(3) appears to me to reverse the onus of proof. It seems to make clear that the item will become the property of the Crown unless some other person can show title to it. There may be a great deal of circumstantial evidence, but I am not clear how that particular test will be made. I should just like to flag that point because, if it is not possible to deal with it in a satisfactory manner, we may return to the situation where there is deliberate non-disclosure rather than the converse. Perish the thought that as a result of the Bill that situation should continue or increase.
I admit that I would like to see unauthorised entry on land with metal detectors subject to much more severe penalties. I certainly do not favour the disposal of treasures abroad, although I have difficulty in seeing how that can be prevented with any absolute certainty, especially if the nation puts a lower value on its heritage than is placed on it by overseas buyers. For reasons that I explained earlier, I do not think museums are always the right place to house hordes of artefacts which cannot reasonably be displayed or which may see the light of day only once in every 20 years. I see that the noble Lord, Lord Renfrew, wishes to intervene. I give way.
§ Lord Renfrew of Kaimsthorn
My Lords, I am much obliged. I do not believe it to be the Bill's intention that all hordes should necessarily end up in museums, any more than that is the current practice of the present treasure trove legislation. It is the case that, only if the museum wishes to secure the objects and is in a position to put up the money to do so, will those objects go to the museum at a market price. Otherwise, the ex gratia provision is in practice not maintained and the objects are returned to the finder. We need not envisage the museums of the country being filled with undesired treasure objects.
§ The Earl of Lytton
My Lords, I am most grateful to the noble Lord for clarifying that point. In the context of the Bill, I would prefer to see a provision actually 1506 stating that fact. I speak from a point of view of some experience in that my family has portraits which are on loan to museums and such places and they see the light of day only very infrequently. For the rest of the time they remain locked in vaults. I would not like to see that happen in this case. I would be much happier if the items concerned sat on Mrs. Jones's mantelshelf to be appreciated by her and her friends when they come to tea. Perhaps the misanthropic millionaire of the noble and learned Lord, Lord Templeman, would please take note of that point.
It is the denial of the knowledge and circumstances of an artefact which is the important feature that we need to deal with under new legislation rather than the principle of who actually owns the goods in question. I speak as a depositor of important documents with learned institutions. More particularly, in terms of the object-specific nature of any study in the matter, there is also a site-specific element which must not be overlooked. I have in mind the comments of the noble Lord, Lord Renfrew, on that general point.
There are aspects of the Bill which obviously I should like to see amended. It is to be hoped that at a later stage we shall have the opportunity to deal with such matters. To the extent that there is a black market in portable antiquities, I should like to ensure that that is stopped as far as possible. There must be some question of the general responsibility and general consciousness of the need to keep items within the country—not every item but the more important ones.
I warmly support the Bill. I have no objections to it in principle. I certainly think that it should be given a Second Reading. I wish it a very good passage, subject to necessary amendment, through to its final stage.
§ 8.37 p.m.
§ Lord Beaumont of Whitley
My Lords, there appears to be complete unanimity that this should be a government Bill. As someone who spent most of today either on this Bench during the course of the present debate or in a Committee Room talking about the National Parks Bill (which also is to come before your Lordships' House and which also should be a government Bill) I begin to wonder about the Government's priorities. They fill the House with Bills which get totally wrecked. Half of them have to be withdrawn. They have not been thought through, consultations have not been taken upon them and your Lordships' time is spent on something which has a very small output. However, the Bills which are admitted by everyone to be necessary and which have been worked through cannot find time, or, if they find time, they merely find it in the hands of unselfish Peers such as the noble Earl, Lord Perth, who are then placed in an almost impossible position from time to time, particularly with regard to what happens to the Bill when it goes to another place.
I should be interested to learn from the noble Baroness, and possibly from the noble Earl, Lord Perth —although this may be a slightly delicate question—what are the prospects of this Bill in another place. As I understand it, not least from talking about the National Parks Bill, there is in another place a situation where, if 1507 the Government take over the Bill, they may not be allowed, or be able, to proceed with it satisfactorily. I believe that the matter should be clarified so that we know where we stand. I was reassured when the noble Earl, Lord Perth, said we would have the chance to amend the Bill because one of the real problems with Private Members' Bills, as your Lordships know, is that they proceed in an enormous rush and we are all told that we may not amend them. I very much welcome the fact that we have the opportunity of amending this Bill and I look forward to that.
I am also grateful to the noble Lord, Lord Renfrew of Kaimsthorn, whose speech was, I thought, very clear. He told us exactly what this Bill is all about and what should be done. Not that the noble Earl, Lord Perth, did not explain his Bill, but the noble Lord, Lord Renfrew, gave us a crystal clear portrait which I believe many of us will return to when we are trying to get to the heart of the Bill. Clearly there is a need for wider legislation and for antiquities legislation, and indeed there is a need for a policy on this subject. I join with the remarks of the noble Lord, Lord Renton, when he asked what the new department is doing about this matter and why it is not behind this Bill.
I do not myself have any expertise in this particular field. In the field or conservation in general I have some knowledge but I cannot hold a torch to the personal experience of my noble friend Lord Hanworth, who made a notable contribution to your Lordships' debate this evening. However, I greatly look forward to seeing this Bill go through. I believe the principle behind it is that of stewardship. We acknowledge that we have the stewardship of properties from the past. I believe the noble Earl, Lord Lytton, tonight, as on other occasions, was slightly too apt to talk about ownership when I believe the correct position is that we are stewards of what we have been left from the past. We are stewards of the objects themselves and stewards particularly of knowledge, arid that is something that we must ensure is preserved at all cost and is able to be used. It is in that area that I feel I am for once wholeheartedly able to join in any effort to try to keep the kind of artefacts or the kind of finds we are talking about in this country. I run a mile when appeals are made to keep some wonderful picture in this country which was painted in Italy 300 years ago and has absolutely nothing whatsoever to do with our heritage. But the things we are discussing have something to do with our heritage. They are part of our history, our heritage and our information from the past and we should preserve them.
The noble Lord, Lord Broadbridge, mentioned the difficulty that could be posed by any additional burden on the British Museum, given its understaffing. I have a question about coroners' courts. I ask my question of the noble Baroness, Lady Trumpington, because no doubt the Government have considered this matter, and of the noble Earl, Lord Perth. If this Bill goes through—we all hope it will—how many finds are we likely to be talking about in the course of a year and how much greater is that number than the number of finds which come before coroners' courts under the present restricted legislation? Will coroners' courts be able to cope with this number?
1508 I understand that, as this is a Private Member's Bill. the noble Earl, Lord Perth, has not been able to suggest an alternative machinery. He is rather limited to sticking with coroners' courts and it may be his opinion that we should stick with coroners' courts. However, if there is to be a much greater burden on coroners' courts, that is something we will have to consider in the course of this Bill. That is the piece of information which I would most like to find. As I have said, I wish the Bill well. We on these Benches will do our best to see that we can help conserve that part of our country's heritage which is most useful to the present and to the future.
§ 8.46 p.m.
§ Lord Donoughue
My Lords, we also wish to commend the noble Earl, Lord Perth, and his associates outside the House for devoting so much time and effort to attempting to tackle this long-standing problem. As I believe every Peer who has spoken has said, the present situation is highly unsatisfactory. The development of sophisticated metal detectors has led to a massive increase in the pillaging of our archaeological heritage. But, as the noble Lord, Lord Renton, said, reform would have been needed anyway.
Under our "finders keepers" tradition, I have seen it estimated that some 20,000 people now regularly use metal detectors and find anything between half-a-million and 2 million portable antiquities a year, although the estimates vary. Not all of those are of great value, and almost certainly not the majority. But it is certain that of those which are of archaeological or financial value, a large number are not reported; and many are sold on, often abroad. Therefore we suffer a cultural haemorrhage. The legal protection for portable antiquities is probably weaker in Britain than in any other European country.
Hitherto, a few of these finds were covered by the ancient treasure trove law. That procedure is deficient, as many noble Lords have pointed out. Therefore there is no need for me to repeat those deficiencies. For that reason the Opposition welcomes any attempt to reform the law. We note the widespread support from outside the House and, so far, the universal support from within it on this matter. That leads me to question whether this Bill is entirely satisfactory as regards remedying the situation. I believe that the noble Earl, in introducing the Bill, was honest in saying that the Bill may not be perfect, and that this House can help to improve it.
I trust the drafting of the Bill is all right. I note we have had various problems recently, even as regards official drafting. The lotteries Act was under attack from the noble Lord, Lord Renton, for alleged defective drafting. I noted what he said about certain clauses in that legislation. I thought on the whole however his comments were encouraging. Perhaps the Minister will assure us that various departments have scrutinised this drafting, have co-operated positively and are reasonably content with the result. If that is not the case, we would welcome amendments from those quarters at the earliest possible stage. However, I should point out that we would welcome positive amendments and not wrecking amendments. We certainly would not approve of any department—however, this is an unthinkable thought 1509 —opposing this drafting simply on the basis of the "not made here" principle. I am sure none of us have ever come across that in Whitehall. Particularly, we would not welcome it when they have palpably failed to come forward with their own Bill so far.
On points of detail, noble Lords have raised many of the points I had in mind, and I will not detain the House by repeating them. One particular point which concerned me has not arisen: that is, compensation. It is not clear how that is dealt with in the Bill, and I look forward to the Minister's help over this in due course.
Another aspect is that in reading the Bill I felt that the principles of the ancient treasure trove and the new treasure are in compass together within the Bill. I hope that has been done satisfactorily. I can see the problem faced by the drafters, but it just seemed to me an uncomfortable mix. I suspect there is no way round it, but I wish there had been. Compared to the scale of the problem we face, the Bill struck me as being very modest in scope, and that may help it to make progress in Parliament.
However, there is a good case for a much more radical approach and a much more radical law on portable antiquities, sweeping away totally the medieval concept of treasure trove and, for instance, making it compulsory to report all archaeological finds to local museums for registration. We on this side would look upon such a Bill with interest, but it would need government action and I should like to hear what the Government's view is on a more radical approach. After all, I am told that even were this Bill to pass, some 90 per cent. of all finds are likely to be unreported.
In conclusion, I stress that we on this side welcome any attempt to deal with the problem of archaeological theft and the serious deficiencies of treasure trove. As I have said, I have one or two reservations about particular aspects of the drafting. If the Bill progresses, there will need to be some clarification, particularly on compensation. We shall look with interest at constructive amendments in these areas at any later stage. We shall listen most carefully to what the Minister has to say about the Government's attitude tonight. If the Government have doubts about particular aspects, I should like to ask whether it is their intention to come forward with some suggestions for position improvement, or will they aim to kill the Bill? If they kill this attempt, will the Government say something specific about their own intentions to protect our historical, cultural and archaeological heritage? That is needed most urgently.
Whatever may be our particular reservations about this Bill, we all surely must agree that it confronts a most serious issue. It would be little short of scandalous if the department does not have its own ideas already drafted for dealing with such a long-standing problem. Simply to criticise the drafting of the noble Earl, Lord Perth, without suggesting positive amendments would be unforgivable. If that were to happen, it would be Whitehall bureaucracy at its most negative. The authors of "Yes Minister", with whom I once proudly worked very closely, identifying various Whitehall "Spanish practices", would have something amusing to say about 1510 that. The Government should either co-operate to iron out the wrinkles in this Bill or they should come forward with their own proposals. Such proposals could profitably be much more radical than the modest ones which are before us tonight.
§ 8.54 p.m.
§ Baroness Trumpington
My Lords, I should like first of all to join with other noble Lords in paying tribute to the noble Earl, Lord Perth, for his promotion of this Bill. Archaeology is fortunate to have such a persuasive champion in this House: perhaps I should say "two champions" because of the support of my noble friend Lord Renfrew. I should like to express my great admiration for the energy and determination which the noble Earl and his colleagues have shown in preparing the Bill, which I know is the result of several years' hard work. Without any doubt it has taken everyone's thinking much further forward on a complex issue. This evening's debate will be a further contribution to that process.
Having said that, I think it is only fair to make clear straightaway that the Government are unable to give their support to the Bill. I am sorry to have to say that because I know it will be a disappointment to the noble Earl and his team—though I know it does not come as a total surprise to them. I should like to take a few moments to explain the reasons for our decision.
The Department of National Heritage took over policy responsibility for treasure trove less than a year ago, in April 1993. Last August we made a special part-time appointment to enable an official with knowledge of the subject to work exclusively on treasure trove and to liaise with the Bill team and the British Museum, who have a major interest in all this. I hope the noble Earl would agree that the arrangement has worked well. I mention these points to assure the House that we understand the importance of this issue for archaeology and we are determined to address it.
My noble friend Lord Renfrew was correct when he quoted my honourable friend in another place, and indeed we approached the task hoping that a Bill would emerge which we could support. Over the last few months there have been extensive discussions between the Bill team and officials of my department and the Home Office. Many problems have been ironed out, particularly on the Bill's implications for the criminal law and for the role of coroners.
On a number of points the Bill team's aims are ones which I imagine practically everyone with an interest in this subject would support. For instance, I think we would all agree that it is time to remove the test that an object is treasure trove only if it was deliberately hidden with the intention of later recovery; and that treasure trove procedures should embrace artefacts, of whatever material, which are found in close association with gold or silver objects. So far so good.
The noble Lord, Lord Beaumont of Whitley, specifically asked me what increase there would be in the workload of the coroners' courts. Of course it is difficult to make a precise estimate of the likely increase in reported finds, partly because not all of them come to 1511 public notice at present: but it is certainly not likely to cause an enormous, increase in the current workload. That is not our objection to the Bill.
A number of key questions remain to be addressed. The most important is whether the basic approach adopted by this Bill would result in a satisfactory reform of the present law. I have to say that we do not think it would. As the noble Earl, Lord Perth, said, the law of treasure trove is an astonishing archaic survival, going back perhaps a thousand years, with its origins in matters far removed from archaeology. Because of its long history, the law is complicated in ways which have really nothing to do with the present-day needs of archaeology. Our view is that the Bill would not actually remove these anomalies. It would have the effect of creating a new concept of treasure, alongside the existing concept of treasure trove. All the existing rules and procedures would continue to apply to objects which fall within the current definition of treasure trove. I must tell the noble Lord, Lord Stewartby, that far from simplifying the arcane complexities of the present law, this Bill would leave them in place and would in some respects add to them.
Alas, the original aim of achieving a simplification of the law has not been realised. For instance, the Bill does not address in any comprehensive way the issue of compensation. There may well be owners or occupiers of land whose property would in future vest in the Crown as treasure. Should they be compensated? If so, should they be compensated as well as finders or instead of finders? If the later, what would be the effect on the main object of these provisions, which is to encourage finders to report their finds?
I am sorry that the noble and learned Lord, Lord Templeman, has had to leave. I wish to comment on his remark that the Royal Prerogative is no problem. I would, of course, defer to the noble and learned Lord on the question of the prerogative. That was a technical point and not one which would prevent reform. However, other difficult legal issues remain to be resolved. For instance, we cannot assume that objects found in the ground are ownerless goods. If someone owns them now, the effect of the Bill would be to vest them in the Crown. The issue of compensation must arise. The Bill does not address that issue.
Our view is that it is most unlikely that those issues can be tackled properly by amendment during the passage of the Bill They raise fundamental issues about the Bill's whole approach, and about the need for more far-reaching reform of the existing law which require fuller scrutiny. I am supported in that view by the Law Commission which studied treasure trove in 1987.
§ Lord Renton
My Lords, will my noble friend allow me to intervene? I am reluctant to interrupt her, but I believe that the point is important. My noble friend states that the Bill provides nothing about compensa-tion. However, in Clause 8(4) (b) the Bill states:The Secretary of State may publish information about the making of ex gratia rewards in respect of finds of treasure".That does not meat necessarily that the provision must be confined to ex gratia payments towards the finder. In Committee we could make it quite clear that it could be compensation for the owner too.
§ Baroness Trumpington
My Lords, the way in which my noble friend puts the point makes it sound very simple. However, I do not believe that it is quite as simple as he states. Perhaps I may go back to what I was saying. I was supported in that view by the Law Commission which studied treasure trove in 1987. It concluded that the objectives sought by those advocating a change in the law were fundamentally different from those for which the law of treasure trove was originally designed; and that it would not be appropriate to seek to achieve those objectives merely by altering or enlarging the law of treasure trove.
The Government accept the case for reform of the present law. We want to build on the work that has gone into the Bill, but we also want to step back from it and —if I may use a dangerous phrase—go back to basics. What are we trying to achieve? Could it be clone more simply and directly than it is at present? Do we really need all the complications of the Crown interest in finds, the jurisdiction of coroners' courts, and so on? Do practices in other European countries offer pointers to a simpler approach which we might usefully follow?
My noble friend Lord Renfrew made the interesting point that it is not ownership of finds which matters, but reporting and information. However, if that should be the basic objective of the system, do we really need all the complexities of the present law which the Bill would preserve? My noble friend's point suggests to me that we need a more fundamental look at what we seek to achieve. The Government's view is that it would be. better to look more closely at such issues before: deciding how best to amend the law. We shall therefore publish a consultation paper later this year which will set out those issues fully and will identify what we see as the main options for reform. That paper will look al: all types of portable find, not just those falling within the present definition of treasure trove. We expect that the responses to the consultation will confirm our present view: that comprehensive legislation to reshape the present treasure trove arrangements is needed.
The noble Earl, Lord Perth, commented on the extent of consultation already undertaken. The noble Earl's list of consultees was very impressive, but I do not believe that it was entirely comprehensive. For instance, there is a wide range of museum interests to be taken into account. Nor is it clear to me that the detail of the Bill has either the full support of all those who have been consulted or could be amended into satisfactory shape.
I hope that the undertaking I have made to consult will lessen the disappointment which the noble Earl and his colleagues are bound to feel that the Government cannot offer support for the present Bill. Even if it is not destined for the statute book, the work that has gone into the Bill will be a valuable contribution to the wider review we now have in mind, and in that sense will certainly not be wasted. Indeed, we look forward to future collaboration.
Perhaps I may end by assuring noble Lords again that my department fully understands that it is an important issue for archaeology, and one of some urgency. We are not trying to kick the issue into the long grass. One of the stated aims of the Department of National Heritage is to preserve ancient sites and monuments and to 1513 maintain and increase our national collection of records and artefacts of the past. Treasure trove is directly relevant to that aim and my department feels a more direct responsibility for that issue than was perhaps felt by some of its predecessors. I hope that we have demonstrated that already. I hope that that answers the rather cruel criticisms that I thought were levelled at my undeserving department. We shall wish to make progress just as fast as proper consultation and legislative constraints permit, but we also want to get the matter right.
I hope that the noble Earl, Lord Perth, will feel that he has achieved a great deal of what he set out to achieve by securing from the Government a firm commitment to address the issue without delay.
§ 9.7 p.m.
§ The Earl of Perth
My Lords, I shall come to the Minister's statement at the end of my remarks. Although it is late, I begin by saying how grateful I am for the splendid and powerful speeches that have been made by all noble Lords. It would be invidious of me to name one or other of your Lordships because all gave us food for thought and full support. Having said that, I shall make an exception by mentioning the legal opinion outlined by the noble and learned Lords, Lord Templeman and Lord Hailsham, although he is not here. It is important to have the legal opinions because in a degree they may contradict what has been said by the noble Baroness, Lady Trumpington.
Under those conditions, I feel it would also be inappropriate to answer the questions that have been put to me but I shall ensure that in one way or another—I hope with the help of the Department of National Heritage—they will be answered. That is not an unreasonable expectation. I look on the problem as belonging not solely to those who produced the Bill and support it: it is also the duty of the DNH to help us at this stage.
I shall touch on one point: that the Bill is rather restricted. I point out that we can—and we have every intention of doing so if the Bill goes through and the Government play—widen its scope. Subsections (5) and (6) of Clause 2 lay down that the Secretary of State can list other things as objects of treasure and can accordingly cover such items as bronzes, iron objects, sculpture and what you will. However, that should be at stage two. I have a motto: "Gang warily", which I think noble Lords will all understand. My belief is that to do it in two stages is probably right.
We were told bluntly by the Minister that the Government are unable to give their support to the Bill. However, a little later she used the words "the present Bill" and, being eternally optimistic, I shall take that seriously. If the Bill cannot have the Government's support, it is the present Bill which cannot and my hope is that at the various stages of the Bill we shall reach a point where the Government will change their mind, recognising that the good is enough and the best can come later.
I shall now turn to the attitude of the Government. We heard undertakings that they would study the matter 1514 carefully and suggestions that perhaps we had not consulted enough people. The only reason that I did not go further on those whom we had consulted was because of time. I could have read out another 10 or 15 groups which we consulted and which have all given us their backing. I should like the noble Baroness to realise that we have consulted every single group that has a worthwhile opinion on the subject.
I must confess that on hearing some of the Minister's words I felt: "Here we go again". It is the same kind of thing as we have had before—undertakings to consult, to start radical thought and so forth, as has been going on for five years. I beg the Government to consider this: the Bill may not be perfect but it could be much better with their help. If we could get through the stages, if the Bill could go through Parliament, what is to stop the Government bringing in their own Bill in two or three years? I say that in all sincerity because during those two or three years, without legislation much more of our history will have been lost. That is not good enough. Please take this Bill, get it to a further stage and let us go forward together.
I can say no more, but I refuse to be downhearted. Rather do I look to consultation such as we have had recently with the Department of National Heritage. It is in the Government's interests and all our interests. Just consider what the media and the public will think of that kind of commitment. Without it they will not only be disappointed: they will not understand. I therefore beg the Government to think again. I shall co-operate in every way I can with them and I invite all noble Lords to tell me what they would like to change. We can do that at Committee stage, and then we must go forward together. I do not believe that the public will understand talk on the lines of: "Oh well, we must look at these matters very seriously". I have heard it all before. I wish to proceed with the Bill and I conclude by asking the House to give it a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.