§ 7.42 p.m.
§ The Earl of Perth
My Lords, I beg to move that this Bill be now read a second time. Perhaps I may add, "Here we go again" two years after considering a similar Bill which was passed with the support of all parties in this House but sadly lost in another place. This one comes—I emphasise the point—from the other place, through which it was skilfully piloted by Sir Anthony Grant.
To digress, we had a stroke of luck. Sir Anthony Grant, who was near the top of the ballot, is an old and close friend of the noble Lord, Lord Renfrew, whose backing, as we all know, has been consistent and invaluable on the Bill. On learning about the Bill from the noble Lord and also from me, Sir Anthony agreed to adopt it. The rest is history. It was debated fully in another place. The strong support of the Minister of State in the Department of National Heritage was given; indeed, all parties were behind it.
Sir Anthony Grant listened and met all those interested in the Bill, including metal detectorists. He incorporated appropriate amendments in the Bill with skill, and he won the day. All archaeologists—indeed all of us—owe him an enormous debt of thanks and gratitude.
To return to the Bill as it now is, I want to issue one word of warning. Further amendments to it in this House could be disastrous and could lose the Bill for ever. I beg your Lordships to keep that constantly in mind when we debate it. I have no hesitation in asking that because the Bill is similar to what was passed two years ago. There have been one or two amendments. But the Bill is much clearer than before; it has been redrafted for all to understand. If, in practice, there are still certain worries about parts of the Bill—for example, the issue of rewards or the reporting of finds—I am sure that those worries can be met satisfactorily with the help of government assurances.
Amendments to my earlier Bill are valuable but on the whole minor. I say that because we must remember that we have already passed something similar to the present Bill. One of the most important changes may be that the coroner now has discretion to call a jury on an issue if he thinks fit.
The two years have not been wasted. During that time much progress has been made by the Department of National Heritage on the code of practice in Clause 11 which deals with rewards, guidance to finders, and so on. The code of practice has to be approved by affirmative resolution in both Houses. Thanks to the two years' delay, if the Bill passes your Lordships' House we are in a position to act quickly. That is a great plus.
Also, during those two years, another issue has been taken forward. I have in mind portable antiquities and the voluntary reporting of their discovery. Many noble Lords, if not all, will have had copies of the excellent discussion document issued in February by the Department of National Heritage. I shall leave it to the noble Lord, Lord Renfrew, and others to enlarge upon that. While, if it is accepted in due course, it will cost 1315 money, it will be money well spent, whether by the Treasury, the National Heritage Memorial Fund, the Heritage General Fund or some other source. It is enormously worthwhile, and its value to our history immense. Incidentally, there is nowhere else in Europe which does not have a portable antiquities Bill.
To return to our Bill, once more I have to say, "Here we are again." My reason for saying that a second time is that, happily, the noble Baroness, Lady Trumpington, is to speak for the Government. She did so two years ago. She has never wavered in her support for a Treasure Bill. She has worked behind the scenes to further it. Her advocacy and charm have ensured that we are considering the Bill today. Thank you, Baroness Trumpington.
Looking down the list of speakers, I see many old friends. Again, I want to thank them for being here and for their support—if that is what they intend. Lastly on this subject, I wish to mention Dr. Roger Bland—a name known to many noble Lords. He has had a double role on the Bill. He has acted for the Department of National Heritage and for the British Museum. His industry, knowledge and persistence have been of the greatest assistance. I hope that when the Bill has been passed he goes on to deal with portable antiquity.
In explaining the Bill I can do no better than quote from its introduction. It states:The Bill replaces the common law of treasure trove in England and Wales and Northern Ireland, which is limited to objects with a substantial precious metal content which were hidden with the intention of recovery and of which the owner cannot be traced".With the invention of the metal detector all kinds of new problems have arisen. One can do no better than describe the present law as a shambles. I go no further but say that I recognise how responsible many metal detectorists are. They have performed a great service for archaeologists, historians and one and all.
The explanation continues:The Bill removes the need to establish that objects were hidden with the intention of being recovered; it defines the precious metal content required to qualify as treasure; and it extends the definition of treasure to include other objects found in archaeological association with finds of treasure. The Bill simplifies the task of coroners and includes a new offence of non-declaration of treasure".I turn to the detail of the Bill. The first three clauses give the meaning of "treasure" and how that can be somewhat changed with the affirmative approval of both Houses of Parliament. The next three clauses deal with ownership. Clause 7 deals with the duties of the coroner and the fact that he can call a jury. Clause 8 is all-important. It introduces a new statutory offence for those who do not within 14 days inform the coroner of their find. However, it is,a defence for the defendant [the finder] to show that he had … a reasonable excuse for failing to notify the coroner".I shall leave the noble Baroness, Lady Trumpington, on behalf of the Government, to elaborate on that issue and to reinforce the fact that people who behave well have nothing to fear.
Clause 10 deals with rewards. It is right that the noble Baroness, as government spokesman, should go into the detail of that. I say only that for the first time the rights 1316 and interests of the landowner are covered. It should be noted that rewards will be fair. The details of all those provisions will be set out in a code of practice, which is the subject of Clause 11. I repeat that the provisions can be changed by affirmative resolution of each House. The remaining three clauses deal with Northern Ireland.
I know that the Bill is not perfect. Categories of objects could be made much wider, as the National Arts Collection Fund has advocated. However, it realises the reality of the situation and there is provision for a change. Furthermore perhaps one would like to see the wrongdoers penalised more heavily. But they can lose out now because if they behave wrongly they will not receive a reward.
When the Bill was first drafted we tried to go along the path of trespass as the main way of handling matters. However, the Home Office strongly objected to that. Perhaps as time goes on it will be seen that the right way to deal with persistent offenders will be by making provision in a Criminal Justice Bill. I refer to the night hawks. That may be the better way of dealing with such criminals, which is what they are.
I conclude by welcoming the support of the CBA. Archaeologists have such enormous interests and roles to play. I also welcome the support of the NFU and CLA and, indeed, many of the metal detectorists themselves. If the Bill is passed, for the first time England and Wales will be able to safeguard their treasures and history to the lasting benefit of one and all. If nothing is done now and no portable antiquities Bill follows, much will be lost for ever. I greatly hope that your Lordships will support the Bill, which has eluded legislation for 150 years. I commend it to the House.
Moved, That the Bill be now read a second time.—(The Earl of Perth.)
§ 7.56 p.m.
§ The Earl of Radnor
My Lords, like my noble friend Lord Renton at the beginning of the previous debate, I am surprised to find myself at the head of the list of speakers. It gives me the opportunity to congratulate the noble Earl, Lord Perth, on his persistence, and I hope success, in getting the Bill on to the statute book.
I must declare an interest in that I have a hand in the running of a large amount of land, some of which I own, and I also have a friend who is considerably knowledgeable and has a metal detector. For about 12 years he has collected bits and pieces on a written remit from myself but they all belong to me.
Recently I telephoned my noble friend the Minister to say that we had collected about 800 pieces, mostly metal but also pottery and flint. I then discussed the matter with my friend in anticipation of the debate. I said, "I suppose that as usual I have exaggerated a little". He said, "Not at all. We have collected well over 3,000 pieces now". That is an interesting quantification of what we are talking about. He then told me that none of them came under the old treasure trove rules and that none come under the new rules, either. Therefore, perhaps we are not dealing with too big a question.
1317 I have a certain amount of reservations which I must he allowed to air during the debate, although I have no intention whatever of tabling amendments. I believe that the driving force behind the Bill came from a desire to sort out the reward and in particular the desire not to lose too many artefacts of importance to the nation. It may be indicative to note the two sponsors. Of course, other people are involved. As the noble Earl said, there are plenty of baddies about, but I shall turn to that later.
There are also many reputable people who use metal detectors and they were a little worried in particular about the new definition. I appreciate that these definitions are very difficult to work out; but I believe that it is felt that the 10 per cent. by weight, 10 coins and so on, will be very difficult to prove. In a rather contradictory manner, it will also leave open to false accusations the bona fide person who is not intending to break the law. I do not know how that could have been avoided. Obviously it cannot be avoided because there it sits.
It would be extremely difficult to mount a prosecution in relation to whether a hoard all in one place, had become scattered and then was in one place again, that would be so difficult to prosecute that it was just as well to leave it out altogether. The definition in Clause 3 reads more like a script from the late Tommy Cooper than a Bill in this Parliament.
I turn now to Clause 2. I wish, as I always do, that these matters could be placed immediately on the face of the Bill and not left to statutory instruments. I admit that they are passed before both Houses of Parliament, but they can either be thrown out or accepted but not altered. I personally do not like that sort of thing. Moreover, I believe that it is extremely difficult to debate this matter without the code of practice. The code of practice may well relieve many of my anxieties but it is not yet available.
Clause 8 provides that the person who feels that he has something that should be reported to the coroner must do so within 14 days. If that is to be done by way of a telephone conversation or a letter, that is fair enough. But if it is much more than that, that may create difficulties. The person who hunts about on my land at home works in a very important job—aero design. This is a weekend hobby for him. It may be very difficult for him to comply with that provision, and it may be that a longer time should be permitted.
The other side of the coin is that the coroner apparently may wait as long as he wishes before he convenes a coroner's court to decide upon the matter.
Perhaps I may ask noble Lords to put themselves in the shoes of someone with a metal detector who is wondering whether the object that he has found is treasure trove or whether it is 10 per cent. by weight, and so on. If an article is covered in mud, it must be taken home, cleaned very carefully, examined, categorised, and so on. Perhaps I may ask the Minister whether it is easy, as a test in law, without destroying the object, to discover whether it has 10 per cent. of precious metal within it.
1318 I should have liked the Bill to contain a provision dealing with confidentiality. In my experience, we must be extremely careful that nobody knows where anything is coming from. It will be very difficult to hide that. If people discover that something exciting is happening, those people—rogues—come with their own metal detectors by day and by night. Therefore, something to cover that situation should have been included in the Bill.
I apologise for asking all these questions but it is almost inevitable that they crop up in one's mind when considering a Bill which I hope will not go through all the normal stages. What happens to existing collections? Why should not a person with an existing collection be laid wide open to false accusations? We have a new set of rules here. For my part, we have built cases in which to put the coins. Do we have to go back, examine them all and say that they were found before the Bill became an Act? That seems to be an awkward position for some people. I believe that collections of birds eggs were covered by the Wildlife and Countryside Act 1981, and I should have thought that a similar provision could have been included in this Bill.
I have two points to make on ownership and who receives the reward. I have always felt that if somebody bought or inherited a piece of land, everything on that land, except for hydrocarbons and treasure trove, belongs to the owner. If anyone is to receive a reward, I feel it should be the landowner and anyone with whom he had an agreement or something of that sort. I consider that otherwise, it may go to the wrong people.
There is a provision in the Bill (which I do not understand) that museums are not obliged to make a payment. Does that mean that they will refuse to take the treasure, in which case it presumably goes back to the owner or does it mean that the museums can be rather stingy and say, "We will take it but, sorry, we're not very rich at the moment and we will not pay"? I may have that wrong. My noble friend in front of me is shaking his head. I am not an archaeologist or a great expert on treasure but the person working with me is. I have merely aired a few of the fears which the bona fide metal detecting community still have.
Finally, I should like to know who is to stand the expense of discovering with certainty whether a coin has that percentage within it? Is it the finder, the coroner or the state who must pay that? That is quite enough from me. I have perhaps exhibited my ignorance but I believe that I have aired some of the genuine concerns of the people who enjoy this hobby and there is no reason why they should not do so.
§ 8.9 p.m.
§ The Lord Bishop of Bristol
My Lords, I thank the noble Earl for the introduction of the Second Reading of the Bill. I heard very clearly the warning about amendments. But to begin with, the Church wishes to give its general approval and support and so welcomes the Bill.
For many years, the Church has had its own system of controls over articles belonging to parish churches; that is, the Faculty Jurisdiction Measure. That is part of 1319 the law of the land just as much as the law on treasure trove. Indeed, it is the only legal system of protection for historic articles in this country apart from the law of treasure trove.
In recent years a parallel system was set up for cathedrals—the Care of Cathedrals Measure 1990. We believe that those controls work well in practice, with the result that the Church is the guardian of many objects which are part not only of the Church's heritage but also of our national heritage. So we welcome legislation to help to preserve secular objects more effectively than the old law of treasure trove.
However, the Church has one concern about the Bill, and that is its impact on objects found on Church property. I should have loved to claim the authority of today's psalm which said:The Earth is the Lord's and all that is therein.I hope that the Church might have been the franchisee. But, as I said, the Church has one concern about the legislation. That is not merely because, like the Crown and some Members of your Lordships' House, the Church has owned much of its land for many centuries—not infrequently since before the Norman Conquest. So what is found on Church land in the present will more often than not have been deposited there at a time when the Church already owned it. More importantly, as I have already mentioned, the Church has its own legal controls over those objects. It is obviously anxious to avoid having two different sets of legal rules governing the same articles and possibly conflicting with one another.
I note in the Explanatory and Financial Memorandum to the Bill the following words:The Bill removes the need to establish that objects were hidden with the intention of being recovered".I believe that the focus of that particular aspect is to be found in Clause 4. One area where problems may arise is that regarding objects buried with their owner in consecrated ground, particularly in or around parish churches and cathedrals, as part of the act of Christian burial.
Perhaps I may give your Lordships an example. It was not unknown in medieval times for a bishop or an abbott to be buried with his episcopal ring and chalice. Those treasures are sometimes found in the course of archaeological exploration of our cathedrals and former abbeys. They were obviously not put there with the intention that anyone should retrieve them in the future. Therefore, they are not treasure trove. But, equally, they were not lost nor left where they were by any form of accident: they were by clear intention entrusted to the Church, with the body of their owner, in the expectation that they should remain within the Church's protection for ever.
I understand from those who have informed me that those situations can give rise to some formidable legal questions, but this is not the time to weary your Lordships by referring to the legal complexities. I know that at present officials of the Department of National Heritage are in discussion with the Council for the Care of Churches, and the Cathedrals Fabric Commission for 1320 England in an attempt to resolve them. At a later stage during the passage of the Bill, I very much hope that the noble Baroness, Lady Trumpington, will be able to assure us that the problems have been solved without the need to delay the legislation.
§ 8.13 p.m.
§ Lord Renfrew of Kaimsthorn
My Lords, this is a very important Bill. Those of us who have a deep concern for the nation's heritage certainly find it so. It is appropriate, first, for me to congratulate the noble Earl, Lord Perth, on his presentation of the legislation. We are very much aware that the Bill in its present form owes a very great deal to the noble Earl who, on a previous occasion, introduced a closely related Bill upon which this one is modelled.
One should, of course, pay tribute to my honourable friend Sir Anthony Grant who introduced the Bill in another place and who dealt with so many matters so effectively, as the noble Earl, Lord Perth, indicated. The reason that we have a high expectation that the Bill will find its place on the statute book is that it has indeed successfully completed its passage through another place. It now only rests with your Lordships to give it full approval, probably without amendment for the practical reasons mentioned by the noble Earl, Lord Perth, before it will be ready to receive Royal Assent.
The matter of amendment is purely one of timing in relation to the present Session. But I am very hopeful that the Bill may not require amendment by your Lordships as, on a previous occasion, a closely related Bill met with the entire approval of your Lordships. Therefore, I hope that that augurs well.
Certainly, the Bill now before us has received the support of a great consensus of archaeological concerns. The Standing Conference on Portable Antiquities has urged its passage as, indeed, has the Council for British Archaeology, the Society of Antiquaries of London, the Museums and Galleries Commission, the Royal Commission on Historical Monuments and county and district archaeological officers. I understand it to have the full support of English Heritage, and certainly the British Museum—and here I must declare an interest as I am a trustee of the museum—gives the Bill full support.
It is important to see the Bill in a wider context. As has already been remarked, Britain is one of the very few countries in Europe which does not have legislation dealing with portable antiquities. Indeed, I believe Belgium to be just about the only other exception. Therefore, although our monuments are in the main quite well protected, it is the case that portable antiquities in general, other than those of silver and gold, are completely unprotected. That gives rise to scandalous episodes like that of the Icklingham bronzes which seem to have been illegally looted from the land where they were located, illegally exported to the United States and subsequently publicly sold there. Of course, because we have not ratified the UNESCO convention, no legal redress was available. As I said, it is a matter of great scandal. The present Bill would not 1321 necessarily rectify that situation as we are talking about bronzes in that case. However, I only mentioned it to indicate the unsatisfactory nature of some aspects of the present situation.
The Bill now before us would end the ridiculous charade of a coroner's inquest with the objective of assessing the motivation of a person burying valuables some 3,000 years ago. That is a pointless undertaking which is impossible to accomplish with any degree of competence. Yet, under the present provisions, it is essential to establish the intention for recovery—the animus revertendi, to use lawyers' jargon—if the objects are to be declared treasure trove. If so, they then become the property of the Crown and the convention is that the finder receives the full market value. It is very important to emphasise that point because that is an incentive for the finder to report the find and is, indeed, a very important consideration. Of course, if the goods are not treasure trove, they are returned to the finder.
However, one has the extraordinary charade involving very important finds. For example, if it is established that the finds constituted a ritual deposit which it was not intended to recover, they are not treasure trove and do not pass into the nation's care; they can disappear without trace. The Bill also has the merit of including objects, other than simply those of gold and silver, in the overall definition of the treasure if they are found together with objects of gold and silver. Again that would overcome the very strange incidents of late where, with the Snettisham finds for example, great quantities of gold and silver were found, together with objects of bronze. The objects of gold and silver were dealt with in the proper way as treasure trove, but the bronze objects were not treasure trove. Therefore, we actually have a system at present where archaeological discoveries of national importance are split up. That situation would be rectified by the Bill. There is also the matter of important, large-scale hoards of bronze coins which at present can disappear without trace because they do not currently rank as treasure.
I am happy to say that the Bill has the support of the County Landowners' Association. It is important to note that, for the first time in the code of practice, the position of the landowner will be recognised in the legislation. My noble friend Lord Radnor should take encouragement from that and from the fact that where a metal detectorist is hunting for treasure with the approval of the landowner, if treasure is discovered and declared to be treasure there will be a 100 per cent. reward. The code of practice will give some indication as to the reward, or they may have already reached some agreement as to how the reward might be divided between them. I hope that is a comfortable thought for my noble friend.
Many metal detectorists support this Bill. Those of them—I am sure it is the majority—who wish to behave legally and responsibly do exactly as does the friend of my noble friend; that is to say, they discuss the matter with the landowner, receive the permission of the landowner to work on the land, and then if the find is to be declared treasure it will go through the proper procedures. In a moment I shall say a few words about the discussion paper on portable antiquities, which is 1322 not, of course, part of the present Bill. If that goes ahead, people will be encouraged to report finds of a broader nature. That will be excellent. I hope it will not prove unduly cumbersome. Then my noble friend and his friend, the metal detectorist, can both feel full of virtue because they will be doing all that they possibly can to ensure that the nation's heritage is fully understood.
It should be mentioned, however, that there is—as the noble Earl, Lord Perth, indicated—a small minority of metal detectorists who, I believe, are repudiated by the majority of metal dectorists. This small minority of metal detectorists are sometimes referred to as night hawks. They flagrantly and illegally trespass, undertake metal detecting and disappear with any treasure that they succeed in finding. It is important that the activities of these persons should be restricted. Many of us hope that before too long there will be introduced, in some criminal justice Bill, a further crime of aggravated trespass, or something of that kind, which will make it possible to nail such persons. However, we should all recognise that when responsible metal detectorists work with the approval of the landowner and in good faith, everything should be made easy for them.
I shall not try to deal with the various points which the noble Earl, Lord Radnor, raised except to emphasise perhaps two of them. First, this is not retrospective legislation as I understand it. Therefore the noble Earl need not be anxious about the objects which he has currently on display, or about objects in his ownership which he will put on display. I agreed with what he said about confidentiality. It is well understood by archaeologists and by the Department of National Heritage that it is not good practice to advertise where important finds have been discovered precisely because one implicitly invites those night hawks to descend, and one does not want that to happen. I am sure that is fully understood.
The right reverend Prelate the Bishop of Bristol mentioned concerns which we can well understand. If a bishop's burial is found in a cathedral, it should be the wish of the Church that the items will remain within the possession of the Church. I believe that could work within the provisions of the present Bill without amendment if it is understood that those items clearly would be treasure and therefore they would fall within the provisions of the Bill. However, there is nothing at all to prevent the treasure, when it is declared treasure, being returned to the custody of the Church. Surely that is the right outcome. That leaves open one question which I shall discuss in just a moment, and that concerns who would pay the reward when a reward is payable. I hope that in most cases a reward would not be necessary. The right reverend Prelate said that sometimes these discoveries occur in the course of archaeological excavation. Reputable archaeologists do not claim rewards and wise Church authorities secure the agreement of archaeologists that they will not claim rewards before inviting them to conduct their excavations on Church property. In such circumstances probably no reward would be payable.
However, in a few cases a reward would be payable for a discovery of treasure that was perhaps a chance discovery in a Church. There have been such cases.
1323 I believe that six Anglo-Saxon brooches were found by the sexton in a churchyard in Pentney in 1980 and were declared treasure trove. The point I am making is that the Church might be better off under the proposed legislation in this Bill than it is at present, because in the case I have mentioned the objects were declared treasure trove. Some silver spoons were found in a wall of a derelict Church at Abberley in the 1960s. They too were declared treasure trove. Under the present Bill they would be treasure, but I hope that there will be measures to return them to the custody of the Church. I hope that to some extent that will set the mind of the right reverend Prelate at rest.
Before I discuss the discussion paper on portable antiquities, I wish to mention my concern about the financial aspect of this matter. At the moment when objects are declared treasure trove—under the Bill more objects will be declared treasure than are currently declared treasure trove because the category is slightly broader—they are looked at, generally by the British Museum, and if it is felt desirable that the museum should retain them, the museum has to put up the full market value to reward the finder. That point was touched on by my noble friend seated behind me.
That can be a difficult matter for the British Museum. In the case of the Hoxne find, a find of the first importance, which was reported at once in the proper manner by the metal detectorist—many of the finds were excavated under the supervision of archaeologists—the find was declared, in a fair manner, to be the discovery of the original finder. That find was valued at £1.75 million. The British Museum had to find £1.75 million in order to give a proper reward to the finder; otherwise, it would have been obliged to return the find to the finder.
§ The Earl of Radnor
My Lords, I am sorry to interrupt but I hope that my noble friend can explain something. As regards the reward, I refer to Clause 10(6) which states:Payment of the reward is not enforceable against a museum or the Secretary of State".That was my worry.
§ Lord Renfrew of Kaimsthorn
My Lords, I am grateful for that comment. I shall give my understanding of that provision but I shall naturally defer to my noble friend Lady Trumpington if she wishes to contradict me. There are two points here. The main one is that if the museum should wish to return the object to the finder and not retain it, the finder cannot say, "I would rather like to have the money". But there may be another sense here. I can assure my noble friend of what is, I believe, the unfailing custom under the present treasure trove provisions where the find has been properly declared. If the treasure trove item is retained by the museum, its full market value is paid. I am sure it is the intention under the rewards provisions and the codes of practice in Clause 10 of the Bill that so long as the items in question are properly declared, the full market value of the finds will be paid. I hope that my noble friend on the Front Bench will confirm that point when she replies to the debate.
1324 I am afraid I must offer a note of dissatisfaction with the present situation. The British Museum's grants in real terms for this year have been cut severely, as have those of other museums. Few museums can now afford the purchases which previously they could have afforded. Therefore I see a difficulty as regards the application of the present Bill unless more generous provision is made. However, I can also see a way forward. The National Lottery provides a good deal of money, much of which is for capital projects or capital acquisitions and not of course, as currently laid down, for recurrent expenditure.
Purchases of objects or the payment of rewards for objects of treasure trove to enable them to remain in the nation's museums—the British Museum or other museums—would be a perfectly appropriate use of National Lottery money under the heritage fund, or whatever may be the appropriate fund. I very much hope that the Government may give consideration to setting up an antiquities heritage fund under the framework of the National Lottery so that it is possible to pay, where necessary, £1.75 million to acquire the Hoxne treasure or its equivalent. That will happen from time to time. If the money is not available to the nation's museums, it will not be possible to reward finders adequately. It will be necessary to give the goods back to the finder, as we have said. Likewise, the same fund would be required in order to reward the finder where appropriate so that treasure found on Church land could be returned to the care of the Church.
As my final and major point, I congratulate the Department of National Heritage on seeing this present Bill as part of a larger vision where the intention will be to consider all the nation's portable antiquities as they are found—objects of bronze, flint or whatever material. It is admirable that the discussion paper on portable antiquities published some months ago—it is still open for comment and discussion—deals effectively with non-treasure categories. I can inform your Lordships that there is a consensus in the archaeological world, as reflected by the standing conference on portable antiquities, that it would be appropriate to bring in a system of voluntary recording. I hope that that will satisfy not only landowners but metal detectorists. It is not suggested that it should be other than a voluntary system, but it would be valuable if a system were set up whereby all finds of archaeological significance were reported without any suggestion that the ownership of the finds would come into question.
The present Treasure Bill deals with ownership. However, any voluntary recording or reporting system would not deal with ownership but with information relating to the circumstances of the find, with all due confidentiality, where appropriate, so that important discoveries of other categories could become known and recorded while the ownership would remain with whoever owns those objects.
Perhaps I may emphasise one point. Such a scheme will need funding on perhaps a modest scale. I hope that the Government will give support. My noble friend on the Front Bench has shown herself to be constructive in these matters in the past. I hope that she is able to give 1325 us some encouragement to believe that the Department of National Heritage may find the resources to set up the necessary pilot scheme so that some modest system could be implemented for the reporting and recording of antiquities under a voluntary scheme. We may then look towards a national scheme working throughout the country. That is what is ultimately needed.
It is helpful to see the present Bill as a first step towards a larger system. Let me emphasise that that larger system would be voluntary and would not impinge on the ownership of finds. It is only the present Bill which naturally does so.
I apologise to your Lordships if I have spoken too long on this important matter, but it is an issue on which I feel strongly. In the discussions in your Lordships' House two years ago, many of these points were most satisfactorily dealt with by the noble Earl, Lord Perth, and others. Therefore, if these important points which my noble friends and the right reverend Prelate raised can be dealt with without too much difficulty, as I trust that they can be, I hope that the Bill will commend itself to your Lordships. If it passes through your Lordships' House without amendment, it has every prospect of finding its place on the statute book, and that will be excellent.
§ 8.35 p.m.
§ Lord Stewartby
My Lords, if I appear to your Lordships to be purple in the face, it is not because I feel apoplectic about the noble Earl's Bill but because I was fortunate enough to be a member of a team drawn from your Lordships' House which has just concluded a thrilling encounter at the Oval during which more than 500 runs were scored and an honourable draw was achieved not long ago with the last of your Lordships' team at the wicket.
With that preface, perhaps I may move more directly to the Bill. Like my noble friend Lord Renfrew, I congratulate the noble Earl, Lord Perth, and thank him for his tremendous achievement in bringing prospective legislation on this subject so far forward. While it is not in name his Bill this time, in substance it is, and he deserves the credit and thanks of your Lordships' House for what he has achieved.
I also believe that it is right to express thanks to Dr. Bland. In this area he has shown himself as able administratively as he is distinguished a scholar. I wish also to thank the noble Baroness, Lady Trumpington—I hope that it will not embarrass her—for the personal interest that she has taken in the subject and for the way in which she has assisted in bringing this legislation to the point where we are in sight of getting it on to the statute book.
As my noble friend Lord Renfrew said, it is part of an overall look at the question of portable antiquities and treasure. I believe that a voluntary system of reporting and recording finds is highly desirable. It is essential for the purposes of scholarship and preserving items of historic interest. I am sure that it will be possible to work out some scheme. It will involve quite a lot of time, effort and possibly expense. However, 1326 I believe that the outline suggested in the discussion document offers a way forward, and one which should be supported.
My noble friend Lord Radnor discussed various technical points in the Bill. It should be possible to deal with many of those by non-statutory arrangements. Under Clause 11 there is extensive provision for a code of practice to be drawn up by the Secretary of State. I believe that many of the points my noble friend raised could be dealt with in that way. The main elements of the Bill are entirely right. The animus revertendi—the requirement that there should have been a determination on the part of the original burier of treasure to go back to recover it—has proved quite impossible in practice for coroner's courts to resolve in any coherent or consistent way. I believe that the Bill makes a great improvement in putting that issue to bed. I also believe that the definitions of metal content, and numbers of coins needed to be regarded as a hoard, are entirely sensible and I strongly support them.
The suggestions about the coroners' procedures should avoid much of the delays and confusion which have sometimes arisen under the present system.
A topic on which I would like to say a few words is rewards and the code of practice. In the 1970s, as a Member of another place, I was able to persuade the then Chief Secretary to the Treasury, who is now the noble Lord, Lord Barnett, that it would be sensible to set up a committee to review valuation. Under the procedures which had hitherto applied, the British Museum found itself in the awkward position of being the intended purchaser of many important items. It was also the arbiter of the price at which they should be acquired. Even in cases where it was quite evident that the price being offered by the British Museum was proper and fully adequate, it inevitably led to complaints and questioning by finders about whether their finds—it was not their property—could be properly valued by the purchaser. The committee was set up and it has worked well in the succeeding years. I have to declare an interest in that I have recently been invited to chair the committee, although the first meeting which I shall be able to attend is not for two weeks.
The treasure trove reviewing committee will no longer be able to carry out its functions once the provisions of the Bill are implemented. Treasure trove as such will cease to exist and a new code of practice relating to treasure in its new form will govern a number of matters, including valuation and various other related questions. That may offer a solution to the problem raised by the right reverend Prelate the Bishop of Bristol. So far as I am aware, nowhere in this legislation or any existing legislation is there a requirement that objects of treasure trove, or treasure, as it will be under these provisions, must go to a specific destination. Clause 11(2)(a) states that the Secretary of State must prepare a code of practice which must set out the principles and practice to be followed when considering to whom treasure should be offered. If the Church is able to make the appropriate representations when the code of practice is drawn up, it ought to be possible to set out guidance which would enable its objectives to be achieved in virtually every case.
1327 The contents of the code of practice will be important and it is appropriate that the provisions of the Bill should not come into effect as statutes until the code has been satisfactorily established. It will require a considerable degree of discussion from interested parties and I hope that some of the points made by my noble friend Lord Radnor will be taken into account when the code is drawn up.
The way forward with the Bill will be much more satisfactory than the present situation which has caused increasing difficulties over the years. I do not object to Clause 2, as my noble friend Lord Radnor does. It will enable adjustments to be made to definitions of treasure, and experience with most legislation is that one cannot predict in advance everything which one will need to take into account. Although in your Lordships' House horror is frequently expressed at what are termed "Henry VIII clauses", a reasonable degree of "amendability" by means of statutory instrument instead of primary legislation tends to make sense where there are complex issues to be resolved and where only in the light of experience can one see how a point ought to be defined in detail.
The Bill is not necessarily perfect, but I do not believe that a perfect Bill is capable of being brought in and gaining the approval of Parliament because the many interests involved do not always work in the same direction. There are many other issues which relate to portable antiquities, the reporting of finds and other responsibilities.
That said, the Bill is a much better potential piece of legislation than the existing law of treasure trove, which is not sharply defined. I wish it well. I hope that it will pass through your Lordships' House without amendment because such legislation which is not put forward by the Government has a habit of falling victim to parliamentary timetables or other unexpected events. That has already happened once with the original Bill proposed by the noble Earl, Lord Perth, in your Lordships' House. I profoundly hope that it will not happen again in connection with this one.
§ 8.46 p.m.
§ Lord Templeman
My Lords, as your Lordships have heard, this Bill is the product of much consultation and consideration. I shall not go through the list of promoters, some are here tonight and I shall only add to the list Professor Palmer of University College, London, in conjunction with Dr. Roger Bland. They have been instrumental in keeping the Bill on the road.
I wish to stress that in the other place and now, the Bill is widely supported. Apart from the archaeologists, who would support it of course, and the museums, who also support it, the Bill is supported by the department which has examined it in the national interest. In addition, the Country Landowners' Association is properly alive to the rights and interests of landowners and it supports the Bill. Recently, the National Council of Metal Detecting gave it support, so one could say that it has universal support. There are one or two reservations to which I shall come, but on the general principle everyone is agreed.
1328 There is great flexibility in the Bill on the code of practice, which I shall come to later. As the noble Earl, Lord Perth, said, it is important that it should pass and not be amended. Once the Bill is amended, it must go back to the other place and possibly return here. At the present stage of Parliament, indeed at any stage, to inflict amendments on such a Bill and try to get it through the parliamentary timetable and the demands of the Government would mean that, through no one's fault, it would be liable to disappear into a quicksand. Thus I echo the noble Earl's plea: please may we have the Bill and nothing but the Bill?
I must deal with the reservations raised by the noble Earl, Lord Radnor, and the right reverend Prelate. First, as your Lordships know, the Bill gets rid of many anomalies about treasure trove: the proportion of gold and silver, the fact that awards cannot be given to the owner of the land. There is also the indefensible anomaly that if treasure was lost accidentally, then it was not treasure trove. Only if it was left with the idea of being recovered was it treasure trove. As the Bill deals with articles 300 years old, that was almost impossible to prove. Everyone admits that the old provisions were quite illogical.
On the negative side, we get rid of those anomalies but the noble Earl says: "Yes, but I have great difficulty: how will I know whether there is 10 per cent. and whether it is 300 years old?" In practice, there will be no difficulty. People who turn up treasure, something which they think might be even more than 100 years old, do not normally put it in a bedsock. They want to find out how old it is, what it is and whether it has any value or contains gold. If they are in any doubt, they may want to consult their own jewellers and friends about it, who may be able to tell them straight away what it is—probably the noble Earl himself will know; he has been at it long enough.
Let us suppose that somebody is ignorant and does not want to spend his money. He can still go to the coroner and say: "I do not know whether this is treasure or not. You may have a look at it". Faced with that possibility, the coroner has to hold an inquest (although there does not have to be a jury). First, he has to notify the British Museum. He therefore writes to the museum or sends a facsimile. The museum then directs him to an expert, and an inquest is held. If it is decided that the item is not treasure, it is returned to the man who found it or to the owner of the land. If it is treasure, the Bill is not interested in taking it away from anybody; the Bill is only interested in protecting the national interest. The Bill clearly provides that it is up to the Secretary of State. Assuming that the coroner finds the item to be treasure, under Clause 4 it vests in the Crown (leaving aside franchisees).
Under Clause 6, any such treasure vesting in the Crown,may be transferred, or otherwise disposed of, in accordance with directions given by the Secretary of State".The answer to the point raised by the right reverend Prelate is that no Secretary of State in his right mind would direct him to take the ring off the corpse of the martyred saint or to give up any ecclesiastical item such as a chalice. He ought to be notified, and for this reason.
1329 The item will be left with the Church, but there will certainly be a requirement to record where it was found. The British Museum will need to be notified since it may want to send an expert to examine it or ask the Church to allow a student to examine it. Probably the treasure will be so valuable that either the Church will sell it or will need to put it in the bank vaults.
As the right reverend Prelate will know, one of the burdens on the Church is the possession of masses of silver plate and valuable articles which, for historical and cultural reasons, the Church does not wish to dispose of but because of the amount of vandalism these days simply cannot be left on exhibition. If the item is Church property, it can be transferred in accordance with directives given by the Secretary of State. Clause 11 states that the Secretary of State must prepare a code of practice. Subsection (2) states:The code must … set out the principles and practice to be followed by the Secretary of State … when considering to whom treasure should be offered … when making a determination under Section 10"—that is, whether it is to be transferred to a museum—or,where the Crown's title to treasure is disclaimed".I have no doubt that a code of practice, if it is necessary, will serve a cause. The Crown is not in the business of grave-robbing. This circumstance will arise only when somebody authorised by the Church has found some treasure by accident. If it is ecclesiastical treasure, the code of practice will immediately provide that the Crown shall direct that it stay where it is—with the Church. But it might equally ask the Church to let someone come and look at it. I am sure that the Church would not wish to prevent proper authorities such as the British Museum or a very reputable archaeologist from coming to look at the treasure. That will be an end to the matter.
But let us suppose that a sexton is bumbling around on an area that is now a churchyard but was, long before Christianity ever came to this country, obviously not sacred ground, and while digging he turns up, for example, 16 silver candlesticks. They had nothing to do with English religion but might previously have had something to do with the bards. Or he may find 16 tablespoons. The Church will not want to say that such items are ecclesiastical; but it will want to report the find. I have no doubt that the code of practice will provide that where the Church wants an item of treasure, either the Secretary of State will accept an obligation to let the Church have the item, or will say that he will bear the matter in mind very carefully. That will only apply to such items as the spoons. If the Church wants the spoons, I dare say the Secretary of State will let the Church have them. The code of practice can so provide.
§ The Lord Bishop of Bristol
My Lords, I thank the noble Lord for giving way. I made three points. The first has to do with the fact that legislation already exists to deal with the finding of such items; and we want to make sure that the two come together. Secondly, we are concerned about what happens on Church land. Therefore we want to talk about the issues, and I was laying down markers. Discussions are taking place. In 1330 the legislation as presently drafted we do not see what the details will be. We therefore want to ensure that they are included.
§ Lord Templeman
My Lords, I was not complaining about the remarks of the right reverend Prelate. I was simply saying that, even as the Bill stands, there is plenty of machinery. It will all come out in the code of practice.
So far as concerns dealing with Church land, it is land belonging to the Church, and the Church must keep out trespassers. If a trespasser turns up a chalice or any other such item I hope he will go to gaol and that the Church will be allowed to keep the item under the code of practice. If the trespasser or the sexton turns up 16 spoons, then if the Church wants to keep the spoons, I think it will be allowed to do so unless the British Museum says that the spoons have nothing to do with the Church but are of an antiquity beyond belief, possibly used by Stone Age man, and the museum wants them.
Whenever treasure is turned up, Clause 10 applies,if treasure … has vested in the Crown … and … is to be transferred to a museum".The Crown is not interested in the treasure going anywhere but to a museum. It will ask the museum whether it wants it. Most people like the noble Earl, Lord Radnor, may have plenty of coins of that vintage and will say no; or will say yes only if they think that the treasure ought to be in a museum so everybody can look at it but not in private hands, or possibly in a church, where it will not be seen.
In that case, if the museum says that it wants the treasure, the Secretary of State must then determine under Clause 7 of the Bill whether a reward is to be paid. The practice is that a reward is always paid for property that is turned up and which is treasure. He then has to determine the market value of the treasure and the amount of the reward. If the museum says that it wants to keep an item of treasure because it is unique and it does not have such an item, the Secretary of State will put a value on it; he may, for instance, say to the museum that the market value is £1.5 million. Under his powers, he can direct that it is transferred to the museum but can say that he will make that direction only if the museum is prepared to pay £1.5 million as a reward.
The Bill carefully preserves the Crown from having any liability; such liability cannot be put on the taxpayer; and the museum cannot be forced to pay. In practice, the museum will be in a dilemma. If it wants the treasure, it must pay the reward. If it does not consent to pay the reward—which is the full market value; so the owner and the finder will not be deprived of anything—all that is done is, in effect, to give a first right of purchase to a museum, at full market value, if it considers that the objects are of national importance and therefore ought to be in a museum rather than in private hands. If the museum says that it either cannot afford the reward or it does not want the treasure, the Secretary of State will direct that it goes back to the noble Earl or to his employee who found it. Then the owner will be able to sell it, and may be able to get £1.5 million for it.
1331 This is not a question of confiscation. It is a right of first refusal for a museum. It is a serious matter. As the noble Lord, Lord Renfrew, said, there are a good many treasures and portable antiquities which ought to stay in this country but which are being sold on the black market and are disappearing abroad. They ought to be revealed, because we can only know our history and culture if we find out where such items are and whether they are worth preserving. For my part, I would have thought it sufficient that the Secretary of State has power to say to whom the property should go, it being his duty to prepare a code of conduct, keep it under review and revise it when appropriate. To do that he must,set out the principles and practice … when considering to whom treasure should be offered … where the Crown's title to treasure is disclaimed. The code may include guidance for those who search for or find treasure; and museums and others who exercise functions in relation to treasure".As I have said, the whole object of the Bill is to see that a museum has an opportunity of acquiring valuable pieces of national importance—if they pay the full market value—and I would have thought that the provisions of the Bill as it now stands and the code of practice are sufficient.
The code of practice must be negotiated, and one of the parties with whom negotiations will take place is the Church. The fact that there is faculty legislation is not a worry. If one intended to keep the treasure or put it somewhere else, it is possible that a faculty would be needed; but if it is ordinary treasure then the provisions of the Bill will cover it. We do not need two Bills.
Equally, on general principles I should like the Church to be under the same umbrella of jurisdiction as everybody else. If a sexton finds silver spoons in a place which may have been a church 100 years before, I do not see why the Church should be in any better or different position from the noble Earl who finds it on his farmland. Equally, if it is within the Church or in consecrated ground, or is what I would call ecclesiastical treasure, I have no doubt that the code of practice will provide that one simply keeps it, subject to notifying the British Museum that it exists so that it may consider whether or not it wants to look at it.
I have spoken for too long. I wish to make one more point. I support what the noble Lord, Lord Renfrew, said regarding the problem of portable antiquities. It has been calculated that there are 30,000 metal detectors which turn up 400,000 buried articles every year. Some of them are absolute rubbish; a lot of them are not treasure within the definition of this Bill, but a great number of them are part of our cultural history. There should be some method whereby those fines can be reported and those which are the most value to our heritage should be preserved.
The Government's proposal is that there should be a voluntary code. That has found general acceptance. Everything needs a little money. To begin with there must be a voluntary code but it must have a little money and centralisation of funding. I shall press the Minister and I am sure that she will press on the Government that it would be a wise investment in our history to produce 1332 enough money to get a voluntary system working which will guard portable antiques which do not fall within the Bill. I hope that I have done something to allay the misgivings expressed in the course of this debate, and I hope that the Bill passes.
§ 9.3 p.m.
§ Lord Renton
My Lords, it always increases one's confidence in legislation that one wants when one hears it approved by a noble and learned Lord. I am glad that the noble and learned Lord, Lord Templeman, said what he did.
Perhaps I too may try to set at rest the fears of the right reverend Prelate the Bishop of Bristol. It is not unusual in our legislation to have laws overlapping. One could mention many cases but I shall mention just one. We have laws preventing cruelty to children and laws punishing people for assaults of one kind or another. One could go right through the statute book and find many examples of laws which overlap and to a limited extent have the same purpose. Therefore, although I agree with him that it may be better to clarify the matter in the way he suggested, I do not believe that in the meantime the cathedrals and churches need worry.
We have varied and valuable relics of life in England and Wales going back 3,000 years which are buried and form part of our heritage but which receive little or no protection under the law. Therefore I warmly support the Bill put forward by the noble Earl, Lord Perth, and thank him for his magnificent initiative two years ago and for continuing it this evening. Without that initiative we might not be providing the protection which is so greatly needed.
The common law of treasure trove in England and Wales is so limited and defective that it is surprising that it has lasted as long as it has. It originated through the need of King Richard I to raise money for the Crusades 800 years ago. It is amazing that that ancient and artificial law survived for so long. Those laws never applied in Scotland—I suppose partly because Scotland was not then part of the United Kingdom and did not become so for a long time. But we owe to a Scottish nobleman—the noble Earl, Lord Perth—the initiative for changing the law in England and Wales in the way proposed, which is long overdue. I am glad to see that he is supported by three life Peers of Scottish origin. I hope that the noble Lord, Lord Morris of Castle Morris, will acknowledge that even the Welsh sometimes owe a duty to the Scots.
The noble Earl also paid tribute to Sir Anthony Grant MP. Grant is a Scottish name. I should like to endorse that. Sir Anthony is a very old friend of mine; indeed, he represents part of my old constituency of Huntingdonshire. Dr. Roger Bland has also been marvellous.
As the noble and learned Lord said, the Bill is now suitable without further amendment. Minor drafting amendments can be made to almost every Bill but we can do without them on this one. They are really not necessary. The only point I want to raise is one that has not been so far mentioned. Art theft in this country and in other countries runs into huge sums every year. It is 1333 a large international trade. Some of that trade consists of objects which will in future, I am glad to say, be protected by the Bill.
§ 9.8 p.m.
The Viscount of Falkland
My Lords, we on these Benches broadly support the Bill. It is admirably pragmatic and it is admirable in the way in which it balances both the private and public interest in an area which has been sadly neglected, as other noble Lords have said, not for many years but for many centuries.
Having said that, it is a Bill which is essentially pragmatic, it has an underlying principle, which is to enable finds of portable antiquities in this country to be examined and reported in a proper way. I do not think any fair-minded person could object to that, though in the other place there were those on, one might say, the liberal wing of the argument who felt that on balance it would be better to keep the status quo as the Bill would curtail the liberty of the individual, whether he was a landowner or an operator of a metal detector, to do what he wished. I do not happen to agree with that argument and I do not think that many noble Lords, if I judge their contributions rightly, would either.
There are in the Bill a number of areas which are not entirely clear to the layman. I was fascinated by a remark by the noble and learned Lord, Lord Templeman, about the position of the Church as regards artefacts and antiquities which may be found. I was interested in his view that the position of the Church should in no way be different from the position of others such as the noble Earl, Lord Radnor. That is an interesting point. I hope that the noble Baroness the Minister will be able to throw some light on that.
The position today is different, with the increase in technology in metal detecting and other areas. I have to be careful here because when the noble Earl introduced his admirable Bill which fell by the wayside and which is replaced by this even improved Bill my remarks about metal detectors and those who use them resulted in my receiving not abusive letters but letters which criticised the implications of my contribution.
For the benefit of those who will be reading Hansard after this debate, on that occasion I was in no way criticising those who operate this technology in a legitimate and responsible way. I was referring to others: I shall use the word which seems to trip easily off the tongue—nighthawks—which I have heard mentioned in this debate. Being of a suspicious nature, in the society in which we live today, I imagine that nighthawks, if not outweighing in number the responsible ones, are a considerable force to be reckoned with; and not only native nighthawks but nighthawks from other countries who may come here attracted by the prospect of finds. Perhaps they read Hansard and think that there is an opportunity here for a great deal of lucrative work, especially when they realise that just under 500,000 finds are recorded each year and probably about one-third again of finds are not recorded. The position here is one which certainly demands legislation of some kind to replace that which has come through our common law and has been with us for some hundreds of years.
1334 Perhaps I may mention some of the points which I have picked up in the course of the debate which give me some anxiety. Clause 10 refers to the payment of rewards, which was also referred to by other noble Lords, including the noble Earl, Lord Radnor. He is anxious about the whole question of rewards. I agree entirely with him that fundamental common sense tells one that the landowner should have the largest claim to the rewards. If one returns to the principle of the Bill, rewards are not the main matter. It is the proper finding and recording of our heritage, the time and the place and other factors which are of greater importance. We all like rewards. I recall recently speaking in a debate on tipping in restaurants. One of my noble friends on these Benches who had been a waiter said that there is nothing in this world that one likes better than a reward. That moved him to believe that to continue tipping in the way we do was better than to change in the manner proposed. Everyone wants a reward, but how it is paid and so forth will be dealt with under the code of practice.
As the matter is expressed in the Bill at the moment, to the lay person it is somewhat difficult and complicated to understand how it will all work. I am sure that the noble Baroness will enlighten us on that. A code of practice is often bandied about in your Lordships' House and one often wonders what it will contain and achieve. For example, will a code of practice tell us more about the procedures which coroners will follow? I do not believe that any noble Lord has mentioned that. I understand from the Bill that a person who fails to report a find within the statutory time limit will be subject to a fine or even a term of imprisonment. But how will a find be reported? Will there be a code or pattern of practice which is the same throughout the country? Will a person gravitate to Cambridgeshire or Devon because coroners in those parts of country are more lenient? A noble Lord mentioned that only a telephone call, a letter or some form was needed, but that is not clear from the Bill.
As regards penalties, it appears that, on the face of it, a fine of £5,000 is derisory. It is not derisory to someone who commits an offence either through negligence, ignorance or carelessness, but it is a derisory amount if the offence is committed with deep intent and careful planning. I shall be very interested to hear the noble Baroness explain why the fine has been set at that level.
Having said all that, these seem to be carping criticisms of the Bill. They are not criticisms really, they are simply areas of uncertainty from my own personal point of view. Obviously, I shall feel very much reassured not only after the noble Baroness has spoken, but after this admirable Bill in many respects has gone through all its stages in this House and has inevitably found its way on to the statute book.
I do not believe that there is anything further for me to say. It has been a very distinguished debate with very interesting and fascinating contributions made by people who are much better qualified to speak on the subject than I, as a mere hereditary Peer who, happily or unhappily, does not have a personal metal detector working for him. I was most interested to hear the noble Earl speak about his collaboration with a metal detector. I believe that that is all to the good. That was a perfect 1335 example of the way in which things should work, but I wonder whether they will work like that in general. It is a fascinating subject. The Bill obviously goes a long way towards making corrections in an area of the law which is in much need of reform. I wish the Bill speedy travel on to the statute book.
§ 9.19 p.m.
§ Lord Morris of Castle Morris
My Lords, those of your Lordships who are in the habit of rising betimes and getting here early in the morning may well have noticed that the annunciator at that time of the day frequently carries an often most interesting thought for the day which seems to originate from somewhere in our security service. Yesterday, for example, the message was a quotation from my master William Shakespeare's play, King Henry VI Part I, Act II, Scene 1, line 58:Had your watch been goodThis sudden mischief never could have fall'n".It was slightly misquoted and I have put it right, but nevertheless the idea was a good one and the point was made.
It seemed to me to be rather appropriate to the Second Reading of this Bill today as, if only we had been able to keep careful watch to facilitate the progress in another place of the original Bill of the noble Earl, Lord Perth, we might have settled the whole matter years ago. The House will wish, I am sure, to congratulate the noble Earl not only on his timely good sense, but on his persistence, his tenacity and his perseverance in seeing to it that his original proposals did not fall by the wayside, but marched resolutely onward and upward to the statute book where they unquestionably belong.
We on these Benches—I speak for both of us—take the view that the Bill was carefully and well debated at all its stages in another place. We agree with the noble Earl, Lord Perth, that any further amendment would be quite unnecessary and counter-productive. There is little left to say, except to reiterate the total support of the Opposition for what seems to us a thoroughly sensible, well drafted, constructive and helpful piece of legislation.
We realise that the Bill is not the last word on the subject. There is further work to be done to develop the Government's well-thought-out strategy on the matter of portable antiquities, but the Bill is an excellent start. I hope that when the noble Baroness the Minister replies to the debate she may be able to say something about the code of practice which I believe will augment the Bill. The code of practice, as we have all said, will be a very important matter in determining how effective the Bill will be in practice—and the glimpses that we have had of it from the debates at all stages in another place were just enough to tempt the palate, but not enough to satisfy the appetite.
We would welcome enlightenment on a few matters relating to the franchisees referred to in Clause 5 and elsewhere. For example, is it true that franchisees do not have to own the land to have treasure ownership rights? What exactly is the position of the landowner, the 1336 leaseholder, the tenant and the finder when franchisees lay claim to recovered treasure? Is the franchisee able to claim the treasure without compensating anyone? Is the franchisee able to dispose of treasure without any consideration for the national heritage? If the noble Baroness can in any way clarify these matters (either when she replies to this debate or subsequently by letter) I shall be grateful. Similarly, I hope that she may be able to offer the right reverend Prelate the Bishop of Bristol some "comfortable words", following the example of her noble friend Lord Renfrew of Kaimsthorn, although I suspect that she will not be able completely to give him, "a happy issue out of all his afflictions".
Finally, perhaps I may applaud the proposals for a voluntary recording scheme to cover all archaeological objects which were set out in the DNH's discussion document on portable antiquities, which was a very welcome document. Clearly, the scheme is deliberately intended to complement the Treasure Bill, and it is distinctly reassuring that it has been welcomed by the antiquities trade, by archaeologists of all sorts and descriptions, and by the metal detectorists—and how good it is to see that the metal detectorists are now overwhelmingly in accord with the Government's proposals about treasure. Those of us who recall the confrontations and disputes so common a decade ago between metal detectorists and all museums—they were almost literally at daggers drawn—will be greatly relieved at the progress which has been made.
Obviously, the voluntary recording scheme will not be possible without some limited additional resources, and I must delicately remind the Minister, as have others, that as yet the Government have made no commitment to providing any additional funds for that purpose. Is it not very nice to find in the Explanatory and Financial Memorandum to the Bill that the whole thing can be done for a mere £10,000 and that,The Bill makes no other calls on public funds"?The noble Earl, Lord Perth, is a Scot. A Scot has been well described as a Yorkshireman without the Yorkshireman's capacity for spontaneous acts of unbridled generosity. He must therefore feel well content that he has achieved excellent value for money and has done Parliament, the nation and the heritage a good turn. Well may he say, in Othello's words,I have done the state some service, and they know 't".
§ 9.26 p.m.
§ Baroness Trumpington
My Lords, I am delighted to have the opportunity to welcome the Bill. I join other noble Lords in congratulating the noble Earl, Lord Perth. I believe that all noble Lords here this evening will agree that it is due largely to the tireless efforts of the noble Earl that the measure has got as far as it has. Our heritage does indeed have a tireless champion. I know how disappointed he was when his earlier Bill failed to make progress in another place two years ago. I hope that the fact that we are here tonight discussing a Bill which has successfully passed through the other place will be compensation for his earlier disappointment. At that time the noble Earl was greatly assisted by my noble friends Lord Renton and Lord Renfrew, as has 1337 happened again this evening. I am grateful to my noble friend Lord Renfrew for his masterly speech which, luckily for me, covered many of your Lordships' questions. Having listened to my noble friend Lord Stewartby and the noble and learned Lord, Lord Templeman, I realise that I speak to a very educated audience.
congratulate my honourable friend the Member for Cambridgeshire South-West who successfully piloted the Bill through another place. It was the first time that a Bill to reform treasure trove had been debated in another place, and we did not know exactly what reception it would receive there. The fact that it passed through all its stages in the other place with support from all Members who took part in the debates was due in large part to the tact and skill of my honourable friend.
I am happy to repeat that the Government welcome the Bill which they regard as a much needed piece of legislation. I am encouraged that all noble Lords who have spoken have also indicated their support for it. I am not surprised. I recall that when the noble Earl introduced his earlier Bill, that, too, received a very warm welcome in this House. I was also encouraged to note that the noble Lord, Lord Donoughue, who at that time spoke for the Opposition, welcomed the Bill, as did the noble Lord, Lord Beaumont of Whitley, who spoke for the Liberal Democrats. This evening the noble Lord, Lord Morris of Castle Morris, and the noble Viscount, Lord Falkland, were equally felicitous.
I should like to deal with some points raised by your Lordships. The right reverend Prelate the Bishop of Bristol referred to the concerns of the Church of England that the Bill might have the effect of depriving the Church of its property. It is important to remember that Clause 4 specifically states that the rights of prior owners and their heirs are protected. Therefore, any objects which can be shown to belong to the Church will not be covered by the Bill. I also reassure the House that the Church will be consulted on the code of practice to be drawn up under the Bill. I think of St. Cuthbert's treasures in Durham Cathedral. I can reassure the right reverend Prelate that the future of such relics remains secure.
The noble Viscount, Lord Falkland, asked about fines. The best I can do is to quote the proceedings of the House of Commons Standing Committee during the course of which my honourable friend said:The fine is set according to the standard scale which is regularly increased as the need arises. We considered carefully whether the maximum penalty would be sufficient, and on balance we believe it is best to leave things as they are. One consideration is that if the penalty were to be increased significantly it might no longer be a summary offence and would become an indictable offence, with all the attendant complications of going to the High Court. In the circumstances it is proper to leave such matters to the jurisdiction of the magistrates' court. The fine can be increased as time goes on according to inflation".I should like to discuss how the Bill will affect two interest groups: metal detectorists and landowners. The Bill places no restrictions on the use of metal detectors and we have repeatedly stressed that any detectorist behaving in a law-abiding manner will have nothing to 1338 fear. My honourable friend the Minister of State in another place gave the following assurance when speaking in the Second Reading debate on 8th March:Neither the Government nor the European Union has any plans to ban or otherwise restrict responsible metal detecting … The Government willingly acknowledge that, in recent years, metal detectorists have discovered many objects of great importance for the nation's heritage".—[Official Report, Commons, 8/3/96; col. 584.]My department, as noble Lords will be aware, has had several meetings with the National Council for Metal Detecting. I believe that these have been very useful to both sides in understanding each other's position and five amendments have been made to the Bill as a result. That amounts to a significant package, without weakening the Bill's archaeological impact.
I was grateful to my noble friend Lord Stewartby for his support regarding coroners. I should like to take up the point made by my noble friend Lord Radnor who was worried about the requirement in Clause 8 that finders should report their finds within 14 days. I can reassure my noble friend that guidance on how finds should be reported will appear in the code of practice but we shall want to make it as simple as possible. He asked how easy it is for finders to determine the metal content of their finds and who stands the expense of deciding whether an object is treasure. The answer to his first query is that minimum precious metal content was raised from 5 per cent. to 10 per cent. during the Bill's passage through the other place. It should normally be visible to the finder if an object contains that much gold or silver, but our advice is likely to be, "If in doubt, report it."
In answer to my noble friend's second question, finders and landowners will not be liable for any expenses under the Bill. The cost of determining whether an object might be treasure will be borne by the body which is asked by the coroner to give an opinion—normally the relevant national museum, the British Museum or the National Museum of Wales.
I should now like to say a few words about how the Bill will affect landowners and the question of rewards. I hope I shall answer the queries of the noble Viscount, Lord Falkland. The Bill strikes a fair compromise between the interests of finders and landowners, which are not necessarily the same.
The current practice is that the Crown offers treasure troves to museums which must pay the finder a full reward if they wish to keep them; otherwise, the objects are returned to the finder. At present landowners are not eligible for rewards under any circumstances—not even if the finder has been trespassing, provided he has reported his find promptly. Rewards will still be payable when museums wish to acquire treasure. However, the Bill will make landowners and occupiers eligible for rewards for the first time. It also gives them the right to be informed of finds of treasure which have been reported from their land. For those reasons, among others, I understand that the Bill has the total support of the Country Landowners Association and the National Farmers Union.
1339 Detailed guidelines on how rewards are to be paid will be set out in the code of practice provided for in Clause 11. The code will be drawn up in consultation with interested parties; for example, bodies representing landowners, the Church of England, metal detectorists and museums. As a further safeguard, the code will have to be approved by both Houses of Parliament through the affirmative resolution procedure before the Bill can take effect. Obviously, it would be wrong for me to anticipate here what may come out of the consultations on the code of practice. However, I can remind the House of the statement that I made during the Committee stage of the noble Earl's Bill in this House two years ago. I said: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".—[Official Report, 23/3/94; col. 733.]Those are the principles that will guide us.
In fact, we envisage that landowners and occupiers will be eligible for rewards under certain circumstances; for example, if the finder has clearly been trespassing. Thus, where there is clear evidence that the finder has been intentionally and knowingly trespassing for the purpose of searching for treasure we would not expect him to be eligible for a reward. But in the great majority of cases, where the finder has permission to be on the land, we expect that the department would comply with any arrangement made between the finder and the landowner over the division of any reward.
Equally, I think it important that we retain a certain amount of discretion in the payment of rewards. We know from experience that some cases that are not straightforward currently arise. There is a very real risk that a provision stating that under no circumstances are finders who are trespassers to be eligible for rewards would be a serious disincentive to the reporting of finds. It could drive many such finds onto the black market and possibly lead to their being exported without a licence, which would achieve nothing.
My noble friend Lord Radnor asked about museums not being obliged to purchase finds. Museums can choose whether or not to purchase finds. They must find the money from their own resources. I noted the remarks about the Lottery made by my noble friend Lord Renfrew. Certainly he would not expect me to answer on anything financial tonight. Any objects which the museums do not want or cannot pay for will be returned to the finders. It is as simple as that.
My noble friend Lord Radnor also asked about Clause 10(6) which provides that the payment of the reward is not enforceable against a museum or the Secretary of State. That confirms that rewards will be ex gratia, as is the case at present. However, I assure my noble friend that we expect to continue paying rewards whenever a find is acquired by a museum, as at present. If no museum acquires the find, then, as at present, we would expect to return it.
I sympathise with the anxiety of my noble friend Lord Radnor about the need to maintain the confidentiality of findspots. I can assure him that it is 1340 perfectly possible to keep the location of findspots confidential. All those concerned in dealing with such finds—archaeologists, museum curators and coroners—are increasingly aware of the dangers of releasing such information publicly. For example, often at treasure inquests coroners do not make public the place where treasure has been found. As a matter of course, the British Museum consults local interests as to how best to refer to the findspots of treasure troves. It would certainly be possible to include guidelines to that effect in the code of practice.
With his great knowledge, my noble friend Lord Renfrew set out many of the facts about portable antiquities. The Government see treasure trove reform, important though it is, as just one part of the problem. The great majority of archaeological objects that are found will still fall outside the scope of this Bill. As the noble and learned Lord, Lord Templeman, said, a recent survey undertaken by the Council for British Archaeology has estimated that every year in England and Wales as many as 400,000 objects of archaeological interest are discovered.
It is important to distinguish between the public acquisition of finds and the recording of them. Treasure trove provides for national and local museums to have in effect the right of first refusal to certain finds. On the subject of recording, there is widespread agreement that the reporting of finds, so that they can be properly recorded, is of key importance—more important than public acquisition. But the noble Earl's Bill will make only limited adjustments to the classes of objects that are legally required to be reported and there would continue to be no legal requirement to report many other important categories of find.
For this reason we have published a discussion document on portable antiquities which seeks views on possible measures to improve the recording of all archaeological objects, not just those covered by the law of treasure trove or this Bill, in the belief that current arrangements are, except in one or two areas, not working well. The Government accept that there is an urgent need for action to record these objects as they are irreplaceable and of great importance for the nation's heritage. The portable antiquities document looks at the relative merits of voluntary and compulsory systems for the recording of finds. Under a voluntary system, the Government would draw up, in consultation with representatives of museums and archaeological organisations and also of metal detectorists, a voluntary scheme for the recording of archaeological objects found in England and Wales. One of the advantages of such an approach is that it would not require primary legislation and thus, providing general agreement for it can be obtained, it could be introduced with the minimum of delay. The document states that the Government's provisional view is that a voluntary scheme offers the best solution.
Last year the Council for British Archaeology established a standing conference on portable antiquities, bringing together all the leading archaeological and museums bodies in order to reach a consensus on these issues. I understand that my noble friend Lord Renfrew played a leading role in this 1341 process. The standing conference met again on 1st May and I have been encouraged to learn that it unanimously welcomed the proposals for a voluntary scheme.
I think we should recognise that this new approach means that the archaeological world has moved substantially in favour of a spirit of co-operation with metal detectorists and away from earlier bad relations. I like to think that my department has helped to move that process along. I know how hard officials have worked on the issue. I understand that antiquities dealers also welcome a voluntary approach.
Lastly, I know from discussions that officials from my department have had with metal detectorists that they would also participate in a voluntary scheme; so I believe there is every likelihood that a voluntary scheme will win general support.
This Bill is a classic example of the art of the possible. We see it as a modest measure to extend the protection currently afforded to certain finds of gold and silver coins and objects to a slightly wider range of archaeological finds and to iron out some of the anomalies of this medieval law. The main aim of the Bill, therefore, is to clarify exactly what type of find should be reported. At present, this is very unclear and is the cause of much confusion.
The Government feel that the most encouraging sign for the future lies in the fact that there is so much co-operation generally. Taken together, the Bill and the proposals in our discussion document on portable antiquities represent the best chance yet to secure improvements in the current arrangements for the acquisition and recording of portable antiquities which we recognise are less than ideal.
§ 9.45 p.m.
§ The Earl of Perth
My Lords, it is very late but I should like, first, to thank the noble Baroness, Lady Trumpington, for her response. If I may say so, the noble Baroness has done it again: she has summed up the whole debate in under 20 minutes. What a great achievement!
Remembering the time factor, I want, nevertheless, to thank all speakers who have taken part, although I shall not mention any of them by name. I am vastly excited by the general support that has been expressed, especially from the Labour and Liberal Benches. We can go forward, confident that we have a real chance to see the Bill reach the statute book.
I am also pleased that those with worries on the matter like the noble Earl, Lord Radnor, and the right reverend Prelate the Bishop of Bristol had the opportunity to air them. I say that because two things have happened. First, we have heard many of the answers to those anxieties, and, secondly, they can either be removed by further discussion or taken care of in the code of practice.
Along with all the details of the Bill, we have also covered a great deal of the ground on portable antiquities. It is most important that that should be done on a voluntary basis. It is a case of the two going along with one following the other very quickly, if not simultaneously hand in hand. One speaker used the 1342 word "pragmatic" in relation to the Bill, and I also heard it said that the Bill represents the art of the possible. I believe that those two descriptions fit it admirably. It is not a great sweeping undertaking or happening, but it will accomplish much of what we want for the history and safeguarding of the treasures of England and Wales.
I shall conclude my final speech by asking the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.