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5 Jun 1996 : Column 1314

Treasure Bill

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

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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

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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.

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I have a certain amount of reservations which I must be 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.

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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

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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

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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

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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

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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.

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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.


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