HL Deb 23 March 1994 vol 553 cc715-36

5.57 p.m.

The Earl of Perth

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

Moved, That the House do now resolve itself into Committee.—(The Earl of Perth.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS COX in the Chair.]

Clause 1 agreed to.

Clause 2 [Property which is treasure for the purposes of section 1]:

The Earl of Perth moved Amendment No. 1: Page 1, line 17, leave out ("subsections (2) and") and insert ("subsection").

The noble Earl said: There are a large number of amendments, and we have done our best to group them in the proper order. It falls to me to take care of the main body of them. Perhaps it would help anybody who does not have the proposed list if I mention those which are in a sense all of a kind. They are: Amendments Nos. 1 and 2 and Amendment No. 5, which is the key to so much of what we shall talk about; Amendments Nos. 7 and 8; Amendments Nos. 13, 14 and 16; Amendments Nos. 20 to 24; and Amendment No. 28. Others will deal with the other bits and pieces as they arise.

First, I should like to say how well all our team studied the Second Reading speech of the noble Baroness, Lady Trumpington. I should tell the Committee something about that team. Let me name the noble Lords who are three of my colleagues, alphabetically. First, there is the noble Lord, Lord Renfrew, who, as the Committee will know, speaks on behalf of the trustees of the British Museum. It is all important to have the British Museum behind our efforts. Then there is the noble Lord, Lord Renton, to whom I am deeply indebted for having done so much of what I call the difficult, dogsbody work, such as listing the amendments, and so on. I should certainly not have been able to do that without him. An unexpected bonus came in the person of our third colleague, the noble and learned Lord, Lord Templeman, who in particular helped us in drafting what was perhaps the most difficult new paragraph, namely, that on ex gratia awards. Alas, he cannot be in the Chamber today as he is otherwise engaged.

The Committee will no doubt also like to know the names of the other members of the team. In naming them, I should like to take this opportunity to thank them. Professor Norman Palmer is a professor of constitutional law at the University of London. Interestingly enough, he has given us advice, because since childhood he has been interested in treasure trove. We are very glad to have his help. Mr. Roger Bland of the British Museum, technical side, was deputed by others of his colleagues, such as Dr. Longworth and Dr. Burnett to help in our work. Last but not least, I should like to pay tribute to Mr. David Graham of the Surrey Archaeological Society. He has been working in this field longer than any of us. He was the one who first came to me and asked for help. It turned out most happily. He was involved from the very beginning and knows more about the subject than almost anybody else. His skill in persuading various people whom we consulted that we were going in the right direction was invaluable.

After that introduction, I come to the amendments to the Bill. Amendments Nos. 1 and 2 are, in a sense, consequential on Amendment No. 5. We have studied in depth what was said at Second Reading to be the attitude of the Government. The noble Baroness, Lady Trumpington, in her comments—I almost used the word "strictures", but refrained—made two observations on the Bill. First, she said that it needed simplification; and, secondly, that we had not taken sufficient care about the problem of the ex gratia awards or compensation. We have tried very hard in the amendments to deal with those criticisms.

Perhaps the Committee can give me some guidance on whether I should leave Amendments Nos. 3 and 4 to be dealt with by the noble Lord, Lord Renton', and then come on to Amendment No. 5.

Baroness Trumpington

With the Committee's permission, I think that the noble Earl should move Amendment No. 1 and if necessary speak to the other amendments grouped with it. It might be helpful to the Committee if I were to speak to that group of amendments following the noble Earl, Lord Perth, in order to show the flavour of the Government's thinking. At the moment, I wait for the noble Earl to move Amendment No. 1.

The Earl of Perth

I thank the noble Baroness for that guidance. Amendments Nos. 3 and 4 are not part of the first group. We were asked to try to simplify matters and we have done so by a simple amendment, Amendment No. 5, wherein the existing subsection (2) is left out and the following words inserted: (2) Treasure trove shall henceforth be treated as treasure within the meaning of this Act". That is the key to everything. We avoid the difficulty of having two concepts: "treasure" and "treasure trove". It is no longer necessary for the coroner to make a judgment between them. If the amendment is acceptable to the Committee, treasure trove will henceforth be treated as treasure within the meaning of the Act. Simplification, and much else, will flow from that.

Amendment No. 6 is an important but minor amendment. We wanted to define not only the archaeological objects but also the cultural ones. However, I shall not deal with Amendment No. 6 at this point. Amendment No. 7 seeks that: The Secretary of State may by order provide that any class of objects, which (apart from the order) would be treasure for the purposes of section 1, shall not be treasure for these purposes".

Lord Kilbracken

With respect to the noble Earl, perhaps it would be simpler if we confined our debate to Amendments Nos. 1, 2 and 5 for the moment and dealt with the other amendments later.

The Earl of Perth

I shall do whatever is acceptable to the Committee. I was trying to group the amendments which hang together. However, if the Committee would prefer to deal with them otherwise, I shall certainly do SO.

Amendment No. 5 is a key amendment. Amendments Nos. I and 2 are consequential on Amendment No. 5. With regard to Amendment No. 7, we have tried to define what is treasure for the purposes of the Bill. The objects are listed. We ask in Amendment No. 5 that subsection (2) be taken out and in Amendment No. 7 that a new subsection be inserted, which reads: The Secretary of State may by order provide that any class of objects which … would be treasure for the purposes … shall not be treasure". That means that although the Secretary of State may list what are treasure objects, he may also remove objects from the list. That may add to simplification. For example, if a huge number of common objects kept appearing again and again, it would be open to the Secretary of State, with the approval of both Houses of Parliament, to delete them as well as to add to the list. This is all in aid of trying to help simplify the whole process.

The next amendments in the groupings are Amendments Nos. 13 and 14. They are consequential. We take out the words "treasure trove or" in one case and, "for the purposes of section 1", in another, because it disappears under the latest suggestions. Then we come to Amendment No. 16: Page 3, line 2, leave out from first ('treasure') to ('he') in line Again, that is all part of the purpose of simplification. I know it is complicated; I find it as complicated as many other Members of the Committee.

In the group containing Amendments Nos. 20 to 24 I should say at once that there is a misprint in Amendment No. 24 on the Marshalled List. It should read, "or its franchisee" rather than "or its franchise". It will be seen that all the other amendments are consequential. We take out the words "treasure trove or", and, "for the purposes of". We do not have to worry too much about them but they are consequential to the all-important Amendment No. 5, which defines what treasure is and leaves out treasure trove altogether.

Lastly in the groupings we come to Amendment No. 28, referring to subsection (5), which reads, in this section 'treasure' means 'property which is treasure trove—. Again, this is a consequential amendment in which we ask that subsection (5) be left out.

With that rather roundabout introduction to the main group —in particular I draw attention to Amendment No. 5—I invite comments before we deal with the rest of the Bill. I beg to move.

Baroness Trumpington

Perhaps I may first offer my congratulations to the noble Earl, Lord Perth, and to other Members of the Committee for tabling this series of amendments, the main effect of which is to do away with the distinction made by the original Bill between treasure trove and treasure. They remove substantial areas of difficulty which we had with the Bill as introduced, and would undoubtedly have the effect of improving the present law. They reduce considerably the reservations we originally had about the Bill and we welcome this particular group.

I move on briefly to say that I am delighted that the sponsors of the Bill also grappled with one of the areas which causes us greatest anxiety; that is, the matter of compensation. They have come up with an ingenious approach, taken a stage further by the amendment tabled by the noble Earl, Lord Lytton. But it is only fair to say that, as I explained at Second Reading, we believe that there is a strong case for taking a more fundamental look at the law of treasure trove, and for attempting a more thoroughgoing reform than this Bill would achieve. We also retain some considerable reservations on the issue of compensation and on the issue of notification. I will have more to say on those points when we reach the appropriate amendments. They are matters which are crucial to any revised scheme and require a great deal of further study.

I recognise the strong support for the present Bill and I know that the best can be the enemy of the good. But I shall want to give some more thought to those issues before making a full statement of the Government's position at Report stage. But whatever doubts remain, I pay tribute once again to the noble Earl, Lord Perth, for his extraordinary dedication to the promotion of treasure trove reform and to the noble Earl and other Members of the Committee for the considerable ingenuity and effort which have gone into the drafting of the amendments we are considering this evening.

6.15 p.m.

Lord Renfrew of Kaimsthorn

I thank my noble friend for her helpful statement, which is much more positive in tone to my ears than perhaps was her statement at Second Reading. We all hope that she and her colleagues will be able to support the Bill at Report stage. We hope that we are heading towards the light at the end of the tunnel and look forward to her statement.

I am sure that the noble Earl, Lord Perth, is right that the key amendment, Amendment No. 5, is a great step forward. Treasure trove itself has become very much an anomaly and the original Bill, unamended, had the ingenious solution of saying that we would set up the concept of "treasure" to deal with those other valuables which do not fall within the category of "treasure trove" and then we would set out to deal with them in the Bill as though they were treasure trove.

But there were still what seemed to some, and I believe to my noble friend and others in the Department of National Heritage, the difficulty that it still left two parallel concepts of treasure and treasure trove. The great strength of Amendment No. 5 is that it draws the one within the other so that there is a single concept in future, an inclusive concept, and those matters will be dealt with in the same way. I do not believe that in practice it changes a great deal, but it is a much more inherent approach.

The other amendment worthy of note within this group—as the noble Earl made clear, most of them are simply drafting amendments—is Amendment No. 7. That amendment may have originated from the Surrey Archaeological Society, so ably advised by Professor Palmer to whom the noble Earl, Lord Perth, paid tribute. I must confess that, when I first saw it, it appeared to be a little opaque in its content. Indeed, I must confess to the Committee that I did not at first understand what it meant. I do now and it really is useful. As the noble Earl explained, it means that the Secretary of State can declare certain categories that would otherwise be treasure as not to be treasure for these purposes.

There is a simple aim. The Bill enlarges the notion of treasure trove to become treasure. We are talking about more objects than we otherwise would have been, and there is always the risk that the authorities may become swamped by small objects of little import—silver pins, silver shoe buckles or whatever. If it were the case that the authorities, coroners and others, were being swamped by these small objects it would be of great convenience if there was a power within the Bill whereby the Secretary of State could say, "In future we will not regard shoe buckles as falling within the category of 'treasure". That is the simple, modest, and not at all sinister purpose behind Amendment No. 7. It makes the future Act rather more workable and, as I understand it, that is its central purpose.

I do not believe the other amendments in the grouping require further comment from me. I support the initial words of the noble Earl, Lord Perth, and point out that the Bill is taken with enormous seriousness by the archaeological community and by the British Museum, which supports it. As my noble friend said, it only goes so far. Many of us agree with her that we should like to see more embracing legislation. That is true. But I am sure that what is enacted within the Bill will be part of that legislation whatever form it takes. That is why the Bill is a step in the right direction even if it does not go all the way. That is why it is so warmly welcomed.

Lord Renton

Perhaps I may make three brief comments in addition to those already made by the noble Earl and my noble friend. First, nearly all of the amendments are based upon the warning and the inspiration given by my noble friend Lady Tnimpington during her speech at Second Reading. Those of us who were involved with the amendments—I am sure the noble Earl will agree with me—took careful note of what she said. We have tried as best we can to follow the line which she took at Second Reading.

Secondly, these amendments have all been considered by the noble and learned Lord, Lord Templeman, who greatly regrets that he cannot be here this evening because he has a long-standing engagement elsewhere arising out of his judicial duties. However, I can assure your Lordships that the amendments on the Marshalled List have his blessing and approval.

Thirdly, I do not think we should overlook the fact that Clause 2(5) as it stands and as it will be slightly amended, and new subsection (5) (a), which is covered by Amendment No. 7, pass the buck to the Secretary of State in order to give further attention to some quite important matters which will require consultation and careful thought on his part and that of his advisers. It is therefore felt, I am sure rightly, by the noble Earl that these matters should be left to the Secretary of State instead of our rushing into decisions on them at this stage. We should look forward to the orders which he will make and present to Parliament in due course under the present subsection (5) and what will become subsection (5) (a).

Those are the three comments I wish to make. I should just add one other point. The heading across Clause 1 is Treasure other than treasure trove. One member asked me why we do not have an amendment to leave the heading out. The point is that these headings and sidenotes are not part of legislation. They are not matters with which the Committee is concerned but are matters which are adjusted by the Clerks of the House after any of the Bill's stages.

Lord Beaumont of Whitley

I found it slightly difficult to follow the exchanges at the very beginning of the Committee stage. I assume from what the noble Lord, Lord Renfrew, said that we are dealing at this stage with Amendment No. 7. I have a query about that. Normally speaking, one would not in this House--I should have thought that the noble Lord, Lord Renton, in particular, would agree with this point—pass any part of legislation which says that anything the Secretary of State may deem to be black shall be called white, or vice versa. I see the point of the amendment as explained by the noble Lord, Lord Renfrew, and I see that it is a useful get-out, but it does not seem to have any limits at all. The amendment states: The Secretary of State may … provide that any class of objects, which … would be treasure for the purposes … shall not be treasure". Is that really the kind of power one should give Secretaries of State, even in a rather limited matter such as this? I merely ask that question.

The Earl of Perth

Perhaps I may help on that point. No order shall be made under subsection (5) (a) or under subsection (5) unless a draft of the order has been laid before Parliament and approved by resolution of both Houses. I think that the noble Lord's fear is met by that point.

Lord Donoughue

The Opposition welcome this group of amendments and also welcome several which are to come later. I said at Second Reading that I was a little unhappy with the concepts of treasure and treasure trove, which seemed to sit uncomfortably in the previous Bill. That aspect has been greatly improved. These amendments certainly have our support.

Lord Kilbracken

Perhaps I may refer to what the noble Lord, Lord Renton, said about the deletion of the heading Treasure other than treasure trove by pointing out that the heading of Clause 4 Provisions about treasure trove and other treasure will also need consequential amendment. I understand that this is done by officials and not by your Lordships in Committee. I feel that the simplest way to deal with this matter, in view of the simplification that has taken place and the lumping together of treasure trove and other treasure, is simply to delete the two headings.

Lord Renton

The noble Lord has put the right interpretation on this. Treasure trove in the past, as has been pointed out, was a narrow concept which has given rise to artificial distinctions, to be decided by coroners' courts, and has not protected the heritage. It applied only to gold and silver which had been buried with the intention of being recovered at some later stage. That is an entirely artificial and obsolete concept. But now, in order to protect the heritage, we speak of treasure at large—it is defined later—which is of historical or archaeological importance. My noble friend Lord Renfrew will be speaking in a moment to an amendment to add the word "cultural". I am glad to be able to assure the noble Lord that we are all on the same side.

Lord Kilbracken

I support what the noble Lord has said.

The Earl of Perth

I do not want to add any more at this stage because the noble Lords, Lord Renfrew and Lord Renton, have elaborated and made more clear what I tried to explain earlier. One or two very pertinent points have been made. I thank the noble Baroness, Lady Trumpington, for what I understand is good news. By that I mean that we have met many of the problems which she foresaw at Second Reading. She encouraged us sufficiently to feel that, if we could solve the one or two relatively small but important difficulties, we would make substantial progress against the time of Report stage.

On Question, amendment agreed to.

The Earl of Perth moved Amendment No. 2: Page 1, line 17, leave out ("(and no other)").

The noble Earl said: Amendment No. 2 is part of the group and explains itself.

On Question, amendment agreed to.

Lord Renton moved Amendment No. 3: Page 1, line 19, leave out ("in the case").

The noble Lord said: These words occur also on page 1, line 22. The words add nothing to the meaning or effect of the subsection and are therefore unnecessary. I beg to move.

On Question, amendment agreed to.

Lord Renton moved Amendment No. 4: Page 1, line 22, leave out ("in the case").

On Question, amendment agreed to.

6.30 p.m.

The Earl of Perth moved Amendment No. 5: Page 2, line 4, leave out subsection (2) and insert: ("(2) Treasure trove shall henceforth be treated as treasure within the meaning of this Act.").

The noble Earl said: We have already talked about this amendment at considerable length. As I believe I said earlier, it is the key to the simplification and the overcoming of very considerable difficulties. I beg to move.

On Question, amendment agreed to.

Lord Renfrew of Kaimsthorn moved Amendment No. 6: Page 2, line 17, after ("archaeological") insert ("or cultural").

The noble Lord said: This is a small amendment to which my noble friend Lord Renton has already referred. It helps to clarify a little an important part of the Bill. In Clause 2(1) (c) it is stipulated that, any object of a class designated under subsection (5) which is … at least 200 years old when found may be regarded as treasure. Subsection (5) holds, The Secretary of State may by order made by statutory instrument designate for the purposes … any class of objects which he considers to be of outstanding historical or archaeological importance". The amendment is to make that read, outstanding historical or archaeological or cultural importance".

That may be a shade superfluous because those archaeologists who take a very grandiose view of their subject certainly hold that if anything is of historical or cultural importance, it would also be of archaeological importance. That is a perfectly tenable view.

However, I believe that this amendment could be a helpful clarification. For instance, one could imagine that there is a great deal of interest in some very special category of find which was not silver or gold. It might be medieval floor tiles which are extremely valuable and very much prized. Members of the Committee are probably familiar with some of those in the Chapter House in Westminster Abbey. They are a very important part of our heritage.

It is conceivable that at some future date—if there were significant finds of such tiles and if they were subject to depredation in some way and they were already of some commercial value—the Secretary of State might want to make an order so that those tiles fall within this category. Yet it could be considered that their significance is more artistic and cultural than specifically archaeological. As an archaeologist myself, I find the amendment slightly superfluous because if the find is of artistic interest and old, then it is certainly of archaeological interest. This amendment is a useful clarification and it is helpful to see it on the face of the Bill. I beg to move.

On Question, amendment agreed to.

The Earl of Perth moved Amendment No. 7: Page 2, line 17, at end insert: ("( ) The Secretary of State may by order provide that any class of objects, which (apart from the order) would be treasure for the purposes of section 1, shall not be treasure for these purposes.").

The noble Earl said: Here again, this is an amendment which I suggested should be considered as part of a group. The noble Lord, Lord Beaumont, raised an issue about it. I replied that the amendment is a definition which can only be approved with the consent of both Houses in the affirmative way. Under those circumstances, I hope that the amendment is acceptable. I beg to move.

On Question, amendment agreed to.

The Earl of Perth moved Amendment No. 8: Page 2, line 18, leave out ("subsection (5)") and insert ("subsections (5) or (5A)").

The noble Earl said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

Lord Renton moved Amendment No. 9: Page 2, leave out line 21.

The noble Lord said: I suggest that these words are unnecessary. The word "object" is a wide term. It is also a little misleading to narrow the issue down to the word "artefact". According to the Oxford English Dictionary that means something which is artificially produced. But "treasure" can include things which are not artificially produced. It can include precious stones or even a skeleton which might be a treasure of historical importance. So we had better keep the definition wide. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Extension of jurisdiction of coroners]:

Lord Renfrew of Kaimsthorn moved Amendment No. 10: Page 2, line 25, leaNe out ("property which is").

The noble Lord said: In moving this amendment I speak also to Amendments Nos. 11, 12 and 19. These form a convenient group. Amendment No. 19 is the significant one here. That amendment provides that the coroner's inquest "shall" be conducted "without a jury" and not that it "may" be. That is a significant point. Therefore, Clause 6 will read, A coroner's inque-it held by virtue of section 30 of the Coroners Act … shall be held without a jury".

The Committee will be aware that one of the more futile exercises of recent years has been the coroner's inquest which is sometimes held with a jury debating the issue of treasure trove. With the amendments already agreed, assuming that the Bill meets with the approval of both Houses, we shall be spared recognizing as to whether something is treasure trove. But it will still be the responsibility of an inquest to determine whether something is properly "treasure" or not and for the coroner to satisfy himself or herself about the find's circumstances and various other items mentioned here which we shall come to in later amendments.

There is nothing very much for the coroner to determine other than the facts of the matter. Previously there was judgment involved regarding the great imponderables as to whether objects made thousands of years ago and the subsequent burials were deliberate or accidental loss or votive offerings. That was clearly a matter which required judgment and often more than the judgment of Solomon; it was often impossible to determine. In such circumstances there was perhaps a role for a jury. When this Bill becomes an Act, the coroner will have very clearly determined duties which are to satisfy himself or herself that the objects constitute "treasure" and to ascertain the find's circumstances. It is clear that there is no useful role for a jury in such an undertaking. The inquest could be held. briefly and without undue formality. I believe that to be the intention. I beg to move.

On Question, amendment agreed to.

Lord Renfrew of Kaimsthorn moved Amendments Nos. 11 and 12: Page 2, line 26, leave out ("for the purposes of section 1"). Page 2, line 26, after ("he") insert ("now").

On Question, amendments agreed to.

Clause 3, as amended, agreed to.

Clause 4 [Duty of finder of treasure to notify coronere]:

The Earl of Perth moved Amendment No. 13: Page 2, line 30, leave out ("treasure trove or").

The noble Earl said: This is a consequential amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Perth moved Amendment No. 14: Page 2, line 30, leave out ("for the purposes of section 1").

The noble Earl said: This amendment provides a consequential change to what we have already been discussing. I beg to move.

On Question, amendment agreed to.

Lord Renton moved Amendment No. 15: Page 2, line 41, leave out ("dishonestly") and insert ("wilfully").

The noble Lord said: Perhaps I may explain the background to this amendment. Clause 4 places a duty on the finder of treasure to notify the coroner. Subsection (1) reads, Where a person finds any property which he has reasonable grounds for believing to be treasure … he shall notify the appropriate coroner of the find". Then appear the circumstances under which he must do so. Subsection (3) states: A person who dishonestly fails to comply with subsection (1) is guilty of an offence". The maximum sentences that can be awarded are then described. The people who will find treasure are not dishonest people. They may sometimes be very wilful. The suggestion of the noble and learned Lord, Lord Templeman, was that the word "dishonestly" should come out and be replaced by the word "wilfully". I trust that in the circumstances your Lordships will agree that that is much more appropriate than "dishonestly".

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Duty of coroner to notify occupier of find of treasure]:

The Earl of Perth moved Amendment No. 16: Page 3, line 2, leave out from first ("treasure") to ("he") in line 3.

The noble Earl said: I beg to move Amendment No. 16, which is consequential on other amendments that have already been dealt with.

On Question, amendment agreed to.

The Earl of Lytton moved Amendment No. 17: Page 3, line 4, after ("land") insert ("and, if different, the freeholder where known").

The noble Earl said: The purpose of this amendment is primarily to incorporate the interests of the freehold landowner in consideration of treasure and the matters that will be implemented by the Bill. In moving the amendment, I declare an interest as a landowner and also as a member of the Country Landowners' Association (to whom I pay tribute for the help that they have given me in this matter). This is not really about landowners' interests as against other interests. The amendment merely seeks to make sure that, if the freeholder is a known person and is different from the occupier of land, the freeholder should have an equal entitlement to be notified under the provisions of the Bill. The reason for that is, first, the enduring legal status of the freeholder and his long-term interest. After all, hopefully we are not talking about treasure disembodied from the place where it is found. We are talking about architectural and historical heritage, and therefore location of significance is important.

Where there is an occupier who is not the freeholder, he may be a fairly transient character. He may be a short-term tenant, or a shorthold tenant in a residential property. There is a real risk that that tenant will not know or understand the long-term importance to the landowner of a find of treasure.

I commend this amendment to the Committee on the basis of a need to know on the part of the freeholder. He has a need to know because he has to contend with other legal matters, whether they be scheduled ancient monuments—which may be a possible outcome of a major find of treasure following subsequent investigation—and also by virtue of the impact on his tenancy agreement. For instance, it may contain a schedule of conditions and obligations with regard to dilapidations at the end of the legal period of occupation by the tenant. Without further ado, I commend this amendment to the Committee.

The Earl of Perth

I should like to comment on the amendment of the noble Earl, Lord Lytton. I can well understand why he is anxious that somebody other than the occupier, particularly the freeholder, should be entitled to be told. The question is: who tells him? In our draft we feel that it is not for the coroner to do it beyond a certain point, that is, the occupier of the land. We have tried to deal with the same point that the noble Earl has raised in Amendment No. 18. I will not talk to Amendment No. 18 now, unless it is in order to do so, but will wait until it is called.

6.45 p.m.

Baroness Trumpington

Perhaps I may ask the noble Earl whether I am right in thinking that Amendments Nos. 17 and 18 are grouped together? If so, the noble Earl is absolutely right to speak to it.

The Earl of Perth

The answer is yes. I thank the noble Baroness for her guidance. Amendment No. 18 states: and that occupier shall similarly inform any person whom he reasonably believes either to be entitled to dispose of the fee simple of the land"— I am informed that that is the correct legal term for a freeholder or to hold the land under a lease or agreement". I know that a question has been raised about the word "or". I can only assure the noble Earl that we will look at that before Report stage to consider whether it should be "or", "and" or some other words. Having said that, I very much hope that the noble Earl will feel able to withdraw his Amendment No. 17.

Lord Renfrew of Kaimsthorn

I should like to speak in support of Amendment No. 18 but also in support of the intention behind Amendment No. 17. I believe that the noble Earl, Lord Lytton, is entirely correct in feeling that it is the landowner's business to know what is going on. Clearly, he should be informed by somebody. The only question is: who should do the informing? The concern of some of us who feel that this Bill is thoroughly worth while is that, if too heavy a burden be placed upon coroners they will begin to groan under the burden. I suspect that the Department of National Heritage may anticipate that and will not wish to see additional burdens placed upon coroners.

It seems very reasonable that the occupier should be the person who has an obligation to inform the owner, for the simple reason that presumably the occupier is in the best position to know who the owner is. The coroner will not know that without further inquiry. That is why it seems to me that Amendment No. 18 achieves very much the same job as Amendment No. 17, though perhaps in a slightly more practical way, in placing the burden of informing the owner on the person who knows who the owner is. I hope that the noble Earl will see that there is a certain logic behind that.

Lord Renton

It is hardly necessary for me to add anything. I should however like to summarise the matter. Everyone agrees that the owner should be informed. The simple issue is whether the owner should be informed by the coroner or the occupier. Putting it shortly, the coroner would not normally know who the owner was. The occupier normally would know, and so the obligation should perhaps be put upon him.

Baroness Trumpington

My noble friend Lord Renfrew is quite right in his supposition. Amendment No. 18 to Clause 5 places a duty on the occupier of land on which treasure has been found, who has himself been notified by the coroner, to notify the freeholder or lessee. Amendment No. 17, moved by the noble Earl, Lord Lytton, would place a duty to notify the freeholder on the coroner rather than the occupier. I should say straight away that we would find it unacceptable to impose on the coroner a duty to inform the freeholder. We would not want to increase the burdens on coroners when that was unnecessary. Amendment No. 18, moved by the noble Earl, Lord Perth, would place this duty on occupiers, who would be best placed to know the identity of the freeholder of the land that they occupied or their head leaseholder. I can see the strength of the argument that that is the appropriate way to proceed. However, it is not clear what happens if the occupier cannot, or does not, notify the landowner. Should there be penalties for non-compliance? If not, how is the duty to be enforced? It is surely of concern that as inquests would not take place until the occupier and owner had been notified, inquests would be subject to considerable delay. There are practical complications here which we can discuss again on Report.

The Earl of Lytton

I am grateful to Members of the Committee for their comments, and to the noble Baroness, Lady Trumpington, for commenting on the extent to which there is any sanction if the duty placed on the occupier to notify the owner is not complied with. My feeling is that it is the landowner—the person entitled to the fee simple—who must be notified, come what may, regardless of there being any other person with an interest in the land. I feel that strongly because of the potentially long-term residual effects and the statutory consequences that may flow from an important find of treasure. We are not talking about unimportant finds; we are talking about the more important finds.

I thought that as there was no sanction against the occupier for that failure, Amendment No. 18 lacked something. But I note and thank the noble Earl, Lord Perth, for his comments. I should like to have the opportunity further to discuss this point with him, because we can probably come up with a formula of words. On that basis, and reserving my position to come back to this point at a later stage if it proves necessary, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Perth moved Amendment No. 18: Page 3, line 5, at end insert ("and that occupier shall similarly inform any person whom he reasonably believes either to be entitled to dispose of the. fee simple of the land or to hold the land under a lease or agreement.").

The noble Earl said: We discussed this amendment when talking to Amendment No. 17. I beg to move.

On Question, amendment agreed to.

Clause 5, as amended, agreed to. Clause 6 [Inquests]:

Lord Renfrew of Kaimsthorn moved Amendment No. 19: Page 3, line 13, lease out ("may") and insert ("shall").

The noble Lord said: I have spoken to this amendment which was grouped with Amendment No. 10. I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Suspected treasure]:

Lord Renton moved Amendments Nos. 20 to 24: Page 3, line 15, leave out ("treasure trove or"). Page 3, line 16, leave out ("for the purposes of section 1"). Page 3, line 21, leave out ("treasure trove or"). Page 3, line 22, leave out ("for the purposes of section 1 by virtue of subsection (1)"). Page 3, line 23, after ("Crown") insert ("or its franchisee").

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

The Earl of Perth moved Amendment No. 25: After Clause 7, insert the following new clause: ("Ex gratia awards. Ex gratia awards may be made to finders of treasure and owners or occupiers of the land on which they were found but the Secretary of State shall take into account all the circumstances including the manner in which the treasure was found and disclosed.").

The noble Earl said: This is an important amendment. As worded, it is our attempt to cover the all important issue of ex gratia awards. I stress the words "ex gratia". The payments are not by any means absolutely necessary. It will be at the discretion of the Secretary of State, as is the case at present, as to whether he makes such a payment. With the help of the noble and learned Lord, Lord Templeman, we have tried to find a broad definition of how the award should be made, without going into too much detail in the Bill. The reason is that one can never tell what circumstances may arise: how something was found; whether it was by pure chance as someone walked along, or whatever; or whether it was a result of a deliberate trespass. Clearly if it is a deliberate trespass—digging a few hundred yards into a landlord's property or scheduled site —the finder should have no award. It might fall to the landowner, or the Secretary of State might decide that it should be forgotten, as it were.

I am also conscious that, as drafted, the amendment may be too all-embracing and without sufficient detail. If the Committee agrees to the amendment, it is our intention to have further discussions with the various people who are interested in the matter, and especially with the Department of National Heritage, so as to get the matter right. There may need to be some extension of the provision. With those words, I beg to move.

The Earl of Lytton

Perhaps I may talk to Amendment No 29 tabled in my name, which is grouped with Amendment No. 25. In the light of what the Committee has already decided, the wording of Amendment No. 29 is clearly defective because it refers to "treasure trove" or "treasure". That has now been already amended. The purpose of the amendment is to investigate how any resultant ex gratia award is to be paid or made, and the circumstances that should apply.

I can cover both amendments in the same terms by saying that my concern was to address the whole question of unlawful entry onto property. If the Bill gives the least impression of legality to something which, by virtue of the common application of the law elsewhere, is clearly illegal, that is dangerous. It is prejudicial to the interests of the lawful owners and occupiers of land. We are dealing with whether a finder, who may have no status as an owner or occupier, is entitled to some ex gratia award in circumstances where he has been onto the land of another.

On Second Reading I made the point that I felt that that issue needed to be addressed, because if it is not and there is no co-responsibility tied in with the ownership and occupation of land, there will be at least two people (not just one) for whom non-disclosure of the find is advantageous. The first will be the finder who has been onto the land, possibly by virtue of an illegal act; in other words, wandering onto the land of another without asking for permission—something which in many cases is not actionable by a landowner. The second will be the landowner—him or herself—for whom there may be no prospect of anything other than a great deal of bureaucracy while the argument rages as to whether the finder who happened upon the artefact is to be rewarded.

The reward must not only follow the responsibility but must be used as a carrot to lead responsible action. One cannot distinguish the two in those terms. That is using the economic prospect as a tool for procuring the objectives of the Bill, and that is important.

There is a particular problem with footpaths. I have always taken the view—I believe that it is legally correct—that a footpath or bridlepath confers on the public a right to pass and to repass for that specified purpose. It is a right over the land of another. It is not a right to look for treasure, to dig up articles or to engage in other activities. It is a right to pass and to repass and to enjoy the countryside thereby.

One must lay down a marker, which was the intention behind my amendment. Entry for specified purposes is lawful; but once one goes beyond that, it is unlawful. One must take a strict approach. It does not matter whether the item is a few feet or 100 metres off the footpath. Either somebody is on the footpath and they are within their legal rights to pass and to repass, or they are off the footpath and are not within their rights. That must be a matter of some "absolutism" in the sense that it is the normally understood law of the land.

I appreciate that the intention behind Amendment No. 25 is to overcome the difficulties which I have already discussed with the noble Earl, Lord Perth. I am not certain that I accept the amendment in its present form. However, on the basis that at this stage in the discussion my amendment is manifestly defective, I put it forward only as a probing amendment in order to obtain a response from Members of the Committee.

7 p.m.

Lord Renfrew of Kaimsthorn

I understand that it was the intention to group together Amendments Nos. 25, 26, 27 and 29, and for that reason the noble Earl, Lord Lytton, has appropriately referred to his Amendment No. 29. That is helpful because Amendments Nos. 25 and 29 are the only amendments before the Committee which can genuinely be described as contentious. They touch on difficult issues. The nub of the difficulty is that on the one hand the treasure trove legislation has always worked to reward the finder. The noble Earl, Lord Lytton, indicated that that is to give an incentive to the finder to report the objects found to the coroner. We all regard that as appropriate.

Clearly, the situation is most unsatisfactory if people deliberately trespass on land—for instance, with metal detectors; but I do not wish to single out any group—with the hope of finding treasure, search for treasure on that land and are in some way rewarded for illegal entry.

As the Bill was originally drafted before it was laid before the Committee, it included reference to an offence of aggravated trespass. There is a case for looking more seriously at the law of trespass. I understand that the noble Earl met with difficulties in a general sense on the Government's side—perhaps more with the Home Office than with the Department of National Heritage.

From the archaeological point of view, I wish to quote what was said by the noble and learned Lord, Lord Templeman, at Second Reading. He said: In that sense no finder who stumbles upon them [these objects] 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".—[Official Report, 9/3/94; col. 1490.] That is the position which many archaeologists take, as do many of those concerned with the national heritage. I do not infer what the compensation or ex gratia arrangements should be. I say simply that our prime concern should be to conserve the objects properly for the national heritage. If I have one single dissatisfaction with the Bill and the approach, it is that it is called "Treasure Bill". It is as though the whole thing is a game of who will get their hands on the gold and the value of it. We sometimes overlook the fact that our primary concern should be to conserve in the best way our national heritage—that is, to have finds reported.

Amendment No. 25 has a great strength in that it is flexible and imprecise. It provides that: the Secretary of State shall take into account all the circumstances including the manner in which the treasure was found and disclosed". The implication is that if the finder fails to disclose treasure and receives compensation, it will be less, if anything, than he would have received had he disclosed the treasure efficiently.

For the first time the position of owners and occupiers is formally recognised in Amendment No. 25. It provides: Ex grotto awards may be made to finders of treasure and owners or occupiers of the land". I hope that that element gives the noble Earl, Lord Lytton, some satisfaction. For the first time in legislation of this kind it is recognised that owners and occupiers have some standing in this matter. On the other hand, Amendment No. 29 would go so far as to deny in every case any reward to a finder who is on land without the consent of the occupier. There are many cases of stray finds. Indeed, I can think of one find on land owned by a city corporation. It was believed that because it was a park to which the public had access the finder had every reason to be there. However, within the terms of Amendment No. 29, that finder might be denied any reward.

The noble Earl, Lord Lytton, said that he will not move his amendment tonight and therefore I shall not criticise it further. Had the noble Earl wished to do so, there would have been an anxiety on that score. The amendment formulated by the noble and learned Lord, Lord Templeman, moved by the noble Earl, Lord Perth, has many merits which I hope landowners and potential finders can recognise. It leaves certain matters undefined but it makes reference to all interested parties. It also makes reference to the key issues, which is the right way to approach the matter.

Lord Airedale

I support what has been said. Amendment No. 29, which omits a word such as "knowingly", is not in conformity with the words "deliberate trespass", which the noble Earl, Lord Perth, introduced in moving Amendment No. 25. The noble Earl, Lord Lytton, sees things very much in black and white. He says, "Either a person is on the footpath or he is not". Life is net like that. You start on a public footpath and then when you are halfway along it, it disappears. You then have to search for the rest of it and eventually you find it.

I am sure that we do not want trespassers who are not trespassing deliberately to be caught by any later amendment that may be produced along the lines of Amendment No. 29.

Lord Kilbracken

Perhaps I may draw attention to the fact that there appears to be a drafting error in Amendment No. 25 which I am sure can be corrected at the next stage of the Bill. The new clause reads: Ex gratia awards may be made to finders of treasure and owners or occupiers of the land on which they were found". I am sure that that is meant to refer to the treasure and not to the owners or occupiers. Treasure may refer to a large number of gold doubloons or pieces of eight but the word "treasure" is indisputably singular. Therefore, I suggest to the noble Earl, Lord Perth, that the words "they were" should be replaced by the words "it is".

Lord Renton

The noble Lord has made a very shrewd drafting point. Fortunately we are in Committee and I am sure that that matter can be rectified at Report stage.

This is one of the most important matters to arise in the Bill. As it stands, the Bill refers to ex gratia payments only in Clause 8(4) (b) which states: "The Secretary of State may publish information about … the making of ex gratia awards in respect of finds of treasure".

I believe that that is passing the buck to the Secretary of State to too great an extent. We need to make up our minds about the principles upon which ex gratia payments may be made and to whom.

I was extremely relieved and pleased that the noble Earl, Lord Lytton, has decided not to press his amendment because I am sure that we need to think further about this matter and, indeed, about Amendment No. 25.

The virtue of Amendment No. 25 is that it accepts the fact that the circumstances in which treasure is found may vary enormously. They varied a great deal in the more limited sphere of treasure trove. But there will be a great multitude of circumstances and I do not believe that we should go into detail about them, should we make different provisions for different circumstances. It is far better that the Secretary of State should have a discretion but that that discretion shall be exercised in favour of bona fide finders and in favour of owners, where appropriate, and occupiers, if it is not a question of the owner being given an ex gratia award.

Therefore, if we accept the amendment—the proposed new clause—moved by the noble Earl, it lays the foundation for getting the matter right by Report stage with the help of my noble friend Lady Trumpington. I am sure that she will be extremely anxious to help in that regard.

7.15 p.m.

Lord Stewartby

I believe that my noble friend Lord Renfrew was right to say that this is potentially one of the most contentious areas of the Bill. Clearly that is the case because it is one of the most contentious areas of the subject matter as a whole.

Whatever Bill is brought forward and whatever provision is made for ex gratia awards, one meets the difficulty of the competing interests of those who may claim some right or value in the find. As further consideration is given to that question, I suggest that one of the most important aspects is to try to encourage the reporting of finds. That seems to me to be at the heart of the matter.

My noble friend Lord Renfrew said that the key factor is to preserve the object as a matter of national heritage without determining its ultimate ownership. That is an extremely important aspect. But what is really needed, almost above everything else, is the proper context of the discovery. In many cases the discovery of objects without their correct provenance reduces their archaeological and scholarly value by a high percentage. The objects may be similar to others that are already known and, therefore, they may of themselves add virtually nothing to the sum of knowledge. But if that is coupled with the context in which they are found, or even the location—because the distribution of objects can often tell us a great deal about trade or other matters of historical interest—then that will be an addition to our knowledge. I hope that it will be possible to find a more precise and clear way in which this whole area can be dealt with.

While I admire the breadth of the amendment tabled by the noble Earl, Lord Perth, I suspect that there may be serious difficulties if legislation of the kind proposed here, particularly in this amendment, is enacted into statute without a rather clearer understanding of how such a provision would operate in practice.

Let us suppose that a finder were so foolish as to trespass on the land of the noble Earl, Lord Lytton. Let us suppose that he strayed off one of the noble Earl's footpaths. There is a degree of culpability in that because the trespasser should not have been there in the first place. And yet, if he receives no reward, or receives only a partial reward—let us say 20 per cent. while the noble Earl receives the other 80 per cent. or whatever percentage may be appropriate—the question then arises whether such partial reward or part of the overall value would be sufficient to encourage that finder to report his discovery and, therefore, to preserve the important information that is otherwise lost. I do not have an immediate solution to the problem but I believe that it is a serious area of difficulty in legislating on this subject. It is encapsulated in Amendment No. 25 and the proposed new clause.

It would be extremely difficult to allow the Secretary of State an arbitrary power of judgment, case by case, because if there were no indication in advance as to how an award might be divided, that could be disadvantageous in obtaining information from finders, which is extremely important. The greatest abuse of the present treasure trove system, which would be replaced by this legislation, is that those who prospect on scheduled sites and on other people's land without permission are strongly minded not to report what they discover. I hope that any formula which is devised along the lines of this new clause could at least have as one of its prime objectives the encouragement of the preservation of that vital information about discovery.

Baroness Trumpington

Perhaps I may, once again, put to the Committee my department's feelings about the proposed new clauses. They do, indeed, go to the heart of the difficulty as we perceived it. We welcome the recognition of the need to place awards in relation to treasure on a statutory footing for the first time. We agree that, in making decisions about the payment of awards and on their size, the Secretary of State should take into the account the circumstances of discovery and disclosure. In particular, where trespass has occurred, we agree that that should be one of the factors to be considered.

However, in contemplating changes to the present compensation arrangements, we venture on unchartered territory, where the law is unclear and there are few precedents. There are legal issues of title to be considered here—vividly illustrated by a report last week of a find in Oxfordshire of an object which would be treasure under the present Bill. In that case, there were no fewer than four claimants to ownership of the find. The question of abatement also raises important policy issues. I welcome the remarks made by my noble friend Lord Stewartby and I cannot emphasise too strongly that our paramount objective is to encourage the reporting of finds. We clearly need to ensure that adequate incentives to finders are preserved under any new arrangements. At the same time we want to discourage wrong behaviour. We are not as yet convinced that the approach adopted in the proposed new clauses is really viable. We would like to give the matter further consideration before the Report stage. I must state again that the reservations I have expressed do not detract in any way from the admiration I feel for the noble Lords who have been prepared to tackle the thorny matter of compensation. They have come up with a straightforward and elegantly simple approach which merits the closest study.

Lord Renfrew of Kaimsthorn

Perhaps I may draw one fact to the attention of my noble friend. The proposal in Amendment No. 25 is scarcely novel. If one left out the words, and owners or occupiers of the land on which [it was] found", would my noble friend agree that the words, Ex graria awards may be made to finders of treasure … but the Secretary of State shall take into account all the circumstances including the manner in which the treasure was found and disclosed", very accurately represent the present system of compensation for treasure trove? If we then re-insert the words—indeed, I did not intend to delete them, and owners or occupiers of the land on which [it was] found", what is new about the amendment is that we would have some regard to the rights and the position of owners and occupiers of the land.

Although my noble friend is right to say that it is a matter of some complexity, I wonder whether she has, perhaps, overlooked the fact that the present arrangements are also of a great complexity and that the arrangements proposed within the scope of the Bill—that is, the unification of the whole concept of treasure —are, indeed, a simplification. I would not want my noble friend to lie awake too much at night worrying about such complexities. If she does so, she could be lying awake for many nights and indeed for many years.

Baroness Trumpington

Of course, I worry about the whole matter night after night. No doubt I shall continue doing so until the Bill has passed through this Chamber. However much my noble friend refers to the fact that the proposal is similar to what we already have, one of the objects of the Bill is to achieve simplification while at the same time improving the present situation. As yet, we are not sure about it. The legal doubts are such that we simply must reconsider the matter.

The Earl of Perth

I thank all Members of the Committee who took part in the debate. When I moved Amendment No. 25, I made the point that it needs further consideration and, perhaps, further development. For example, it is possible that some aspect needs to be spelt out in more detail at a later stage. It could then receive parliamentary approval as, indeed, happened earlier as regards defining the class of objects.

I am fully conscious that, as it stands, the amendment raises important points which are not yet fully covered. However, I believe that the manner in which treasure was found and disclosed indicates the direction in which we should like to go. I fully accept that what is all important is to get the object reported. From that, many other considerations naturally flow. I should just like to add that I recognise that the amendment is not yet perfect as regards the drafting.

On Question, amendment agreed to.

Clause 8 [Government guidance about treasure]:

The Earl of Perth moved Amendments Nos. 26 to 28: Page 3, line 37, after ("museum") insert ("or"). Page 3, line 38, leave out paragraph (b). Page 3, line 40, leave out subsection (5).

The noble Earl said: I believe that these amendments are consequential upon Amendment No. 25. I beg to move.

On Question, amendments agreed to.

Clause 8, as amended, agreed to.

The Earl of Lytton had given notice of his intention to move Amendment No. 29:

After Clause 8, insert the following new clause: ("Trespassers If treasure trove or treasure is found by a person who is on the land without the consent of the occupier and, if different, the freeholder, any ex gratia award in respect of such treasure trove or treasure shall not be paid to the finder.").

The noble Earl said: Before I finally lay the amendment to rest—for which Members of the Committee will no doubt be thankful—I should like to cover a number of points that were raised. My concern was the long-term care of the site because of the site relevance of the find. I particularly associate myself in that respect with the comments made by the noble Lord, Lord Stewartby, which I thought were absolutely to the point. However, I have to take slight issue with the noble Lord, Lord Airedale, because I do not believe that losing your way on a footpath entitles you to go looking for other things. Indeed, countryside legislation (which covers digging up plants and other such activities) quite clearly specifies that fact. A footpath is for recreational use and is not a facility to enable people to search for treasure.

Finally, there is the question of residual costs and administration which fall on the landowner as a result of a find. which cannot be dismissed. You cannot excise the benefits to one party and have the legacy of the problems resulting from the bureaucracy and the administration which can arise from a major find left solely in the hands of the landowner or occupier. That is manifestly wrong. Bearing in mind the comments of the noble Earl, Lord Perth, and of the noble Lord, Lord Renton, I hope that we shall be able to discuss this matter and find a better formula. I associate myself in that regard with the comments of the noble Baroness. Lady Trumpington. I shall not move the amendment.

[Amendment No. 29 not moved.]

Clause 9 agreed to.

Remaining clause agreed to.

7.30 p.m.

In the Title:

The Earl of Perth moved Amendment No. 30: Line 1, leave out ("which is not treasure move").

The noble Earl said: This matter lies at the heart of the whole Bill; namely, that we have sought to gel. rid of treasure trove and start on something new. Before I formally move the amendment, I again thank the noble Baroness, Lady Trumpington, for her understanding and encouragement. I also thank all other Members of the Committee who have taken part in this Committee stage. I am quite sure that we have the same purpose. We have one particular difficulty that we all wish to solve and I have no doubt it is essential that we change the law as it now stands and adopt a simpler and better provision. I beg to move.

On Question, amendment agreed to.

House resumed: Title, as amended, agreed to; Bill reported with amendments.

House adjourned at twenty-eight minutes before eight o'clock.