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Amendments 13 to 18

Moved by Lord Hunt of Kings Heath

13: Clause 2, page 2, line 13, leave out subsection (2)

14: Clause 2, page 2, line 26, leave out “(1)(b)” and insert “(1)(a)”

15: Clause 2, page 2, leave out from end of line 26 to end of line 28 and insert “(and see also section 36 (guidance)).”

16: Clause 2, page 2, line 32, at end insert—

“(5A) A draft of any guidance proposed to be given under this section is to be laid before each House of Parliament.

(5B) Guidance is not to be given under this section until after the end of the period of 40 days beginning with—

(a) the day on which a draft of the guidance is so laid, or

(b) if the draft is laid on different days, the later of the two days.

(5C) If, within that period, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Secretary of State must not give that guidance.

(5D) In reckoning any period of 40 days for the purposes of subsection (5B) or (5C), no account is to be taken of any time during which—

(a) Parliament is dissolved or prorogued, or

(b) both Houses are adjourned for more than four days.”

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17: Clause 2, page 2, line 33, leave out subsection (6) and insert—

“( ) The Secretary of State must publish, in such manner as the Secretary of State may determine, any guidance given to the MMO under this section.”

18: Clause 2, page 2, line 36, at end insert—

“(8) In this section—

“consistent and co-ordinated” includes taking into account the effect (if any) that decisions in respect of—

(a) any particular part of the MMO’s area, or

(b) the carrying on of any activity within that area,

will have on any other part of that area or the carrying on of any other activity in that area;

“evidence” includes predictions and other opinions resulting from the consideration of evidence by any person;

“the MMO’s area” means those parts of the UK marine area, or of the United Kingdom, where MMO functions are exercisable;

“MMO functions” means functions exercisable by or on behalf of the MMO.”

Amendments 13 to 18 agreed.

Clause 3 : Performance

Amendment 19

Moved by Lord Bridges

19: Clause 3, page 2, line 40, at end insert—

“( ) These objectives should include the protection of items of archaeological interest on the seabed.”

Lord Bridges: My Lords, Amendment 19 incorporates the care of archaeological articles found on the seabed among the responsibilities of the Secretary of State. I should explain that I am not a professional archaeologist in any sense. My interest was first aroused when, as a student at Oxford, the all-embracing curriculum of the school of modern history was described in the university statutes as:

“The history of Britain from the beginning to the present day”.

My own special study was devoted to more recent history, in particular, the origins of the First World War, which was totally absorbing. However, there was some archaeology involved in the Anglo-Saxon and Roman periods of British history and subsequently I have belonged to the county archaeological societies of the three counties in which I have come to live: Surrey, Sussex and latterly Suffolk, where I have settled permanently on retirement.

It so happens that one of my Suffolk neighbours in Orford, Mr Stuart Bacon, is seriously interested in locating treasures under the sea. He actually spent his career in the Royal Air Force, but he has opened a small museum in our village called Suffolk Underwater Studies. Some years ago, he located the wreck of a Spanish warship close inshore, which had got lost on the way home after its defeat in the Spanish Armada. The wreck included a rare 16th century Spanish cannon. With some difficulty, Mr Bacon raised this to the surface and transported it to his museum. It was too large to go through the door, so he chained it securely to the structure and began negotiations with the authorities in London so as to locate a national naval museum to which he could present it.

While this was going on, at 7.30 one morning a convoy of official government vehicles arrived with a team who cut the chain and removed the cannon. I

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thought this to be an extremely rude, even high-handed, action and raised this matter at Question Time in this House on 14 March 2001, at cols. 841-2 of Hansard. The noble Lord, Lord McIntosh, for the Government agreed that the Royal Armouries did send a trailer and cut the chain, but there was no apology. More recently, I have been informed that the Crown Estate is now issuing licences for the extraction of aggregate within the 12-mile territorial limit. The official letter informing of this said:

“Surveys are carried out before dredging but...surveys often miss an ancient wreck”

This seems a somewhat haphazard procedure.

I also wish to draw attention to a significant recent development; namely, the discovery of an important British wreck in the Channel. This was evidently HMS “Victory”, launched in 1737. It is a major discovery. Previously it had been believed that the ship had come to grief close to the Channel Islands but the remains of the ship lie further west, scattered over a wide area and her fate now lies in the hands of the Disposal Services Authority, part of the Ministry of Defence. The ministry have a contract with an American company, Odyssey, which will dispose of the proceeds and might share some of them with the Ministry of Defence. Odyssey has American shareholders and is registered in New York. The contract should include archaeological supervision by the British Government but I do not know that that has happened. However, these arrangements do not comply with the UNESCO Convention on the Protection of the Underwater Cultural Heritage, which came into force in January 2009.

Meanwhile, it seems likely that the fate of the valuable contents may be determined by the American courts. Among the items included in the cargo are apparently four tonnes of gold coins. This is the most important naval wreck to be discovered in recent years. Evidently, it is more important than HMS “Mary Rose”, which attracted much public attention a few years ago.

For a fuller account of this remarkable event, I refer noble Lords to the current issue of British Archaeology—the issue for May/June—which is published by the Council for British Archaeology. I subscribe to that magazine and have arranged for photocopies of the most important pages to be available in our excellent Library, which is not a subscriber. I think that noble Lords will find it compelling reading, and I strongly recommend that Ministers responsible for the Bill study the article carefully as it will give them much food for thought. In particular, it would appear that the current commercial arrangement with Odyssey may conflict with the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.

The amendment in my name is intended to give political responsibility for issues as significant as these to the Minister in charge of the department—that well known if elusive personality, the Secretary of State. I suggest this because I believe that the issues involved are so large that the Minister in charge of the department should play a leading role in reaching decisions. The record to date, which I have cited, suggests that there has been little or no consideration of these issues at the political level. That is what I believe should happen in the future and that is the purpose of my amendment.

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I suggest that the Government would do well to consider these major issues before proceeding to the last stages of the Bill before us. I trust, therefore, that the Government will take a short period to reconsider the future of the Bill. Pending their reconsideration, I do not propose to press my amendment to a vote at present. I also suggest to the Government that there are other possible ways of proceeding. The first might be to recast the Bill in its entirety so that it concentrates on the issue of coastal paths, which seems to be its main political purpose. The remainder could certainly be put off until another day. We have already had a useful and thorough debate about the footpaths detail, so that would not be wasted.

Alternatively, it might be decided to examine the whole issue of underwater treasure more thoroughly. Clearly, this is an important topic which Her Majesty’s Government have not been able to concentrate on so far. I also venture that the creation of the administrative machinery to cope with the Bill in its present form will constitute a burden on the Exchequer which currently it is in no position to absorb. I shall await the Government’s response with keen attention. Meanwhile, I repeat my request that the Minister should study the current issue of the magazine British Archaeology. Evidently, the Government have not had access to it so far. I beg to move.

Baroness Hooper: My Lords, I believe that I have no relevant interests to declare, but—just in case—I am a member of the All-Party Parliamentary Groups on Arts and Heritage and on Archaeology.

I very much agree with what the noble Lord, Lord Bridges, said in drawing attention to his amendment. I also attribute considerable importance to this area of our cultural heritage. In saying that, I should like to refer to a splendid document called Archaeology Enriches Us All, which, among other things, states:

“Archaeology is key to understanding an irreplaceable store of human history, most with no written record and sometimes highly vulnerable”.

That is particularly true of the marine environment.

I am glad to hear that the noble Lord does not intend to press the amendment today because the Government, in tabling Amendments 82 and 111 in this group, have acknowledged the importance of this area and have—dare I say it?—taken on board amendments tabled earlier by an all-party alliance comprising the noble Lords, Lord Howarth of Newport and Lord Low, the noble Baroness, Lady Miller of Chilthorne Domer, and myself. The issue was discussed also by other noble Lords with considerable expertise and knowledge who are not able to be here today to record their agreement to the government amendments.

I am very happy to acknowledge that, in Amendments 82 and 111, the Government have met many if not most of the concerns expressed in Committee. If it were not for these two amendments, there would be no explicit provision or requirement for marine plan authorities to keep historic or archaeological features under review, nor would there be any provision insisting that the authorities designating marine conservation zones have regard to the consequences for any sites in the area that are of historic or archaeological interest. However many times it is said

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that the Bill’s main emphasis is to protect the natural environment, and however often we are asked to wait patiently for the heritage protection Bill—which may or may not be mentioned in next year’s Queen’s Speech—we nevertheless now have a specific reference point that enables a read-across to relevant existing legislation and to any future legislation which ties in our historic and cultural heritage, and marine archaeology considerations, with the new organisation and zoning arrangements created by the Bill.

The recently published high-level marine objectives document entitled Our Seas—A Shared Resource uses the word “heritage” eight times, “archaeology” once and “seascape” three times. In the document originally put out for consultation, “heritage” was used on only four occasions and “archaeology” and “seascape” not once. The noble Lord, Lord Bridges, should be reassured by the fact that “archaeology” is included not only in the Bill but in high-level documents published outside the House. The final document also includes definitions of marine cultural heritage and seascape which we may hear a little more about later on Report.

I thank the Minister and all those behind the scenes who have taken part in the discussions that have led to this happy state of affairs. I wish to mention specifically the Defra Minister in another place and the various NGOs, particularly English Heritage, whose input and support have been very significant. This is an important Bill and it should be as comprehensive as possible. As has been said, we send this Bill to another place in a better state. I thank the Government for listening.

5.15 pm

Lord Hunt of Kings Heath: My Lords, I wonder whether it might be useful if I spoke now to the government amendments and responded to the amendment of the noble Lord, Lord Bridges. If I do, I will not be able to speak again, although I might be able to refer back with the leave of the House. Shall I do that? I think it would be helpful to the House to have more information about the government amendments.

Baroness Hooper: I apologise, my Lords. I was far too impetuous.

Lord Hunt of Kings Heath: Not at all, my Lords.

I am very glad that the Government are able to bring forward amendments on an undoubtedly important matter. The noble Lord, Lord Bridges, and the noble Baroness, Lady Hooper, have already indicated why it is important that the MMO gives due consideration to these matters. The noble Baroness has already referred to the Government’s high-level marine objectives of 20 April which make it clear that people should appreciate the diversity of the marine environment, including its natural and cultural heritage. Let me make it clear that these high-level objectives underpin the development of the marine policy statement, which will then be applied in more detail in specific areas via the marine plans. So the high-level marine objective is important, which is why the references which the noble Baroness, Lady Hooper, made to heritage and seascapes can be taken through the whole process that the Bill brings into play.

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I also make it clear that the kind of specific and comprehensive heritage protection that both noble Lords have intimated they would like to see deserves its own legislation. I know that there is disappointment that the Government have not yet been able to bring forward the heritage protection Bill in this parliamentary Session. However, we remain committed to that legislation and believe that it is the right vehicle for the comprehensive and vital protection of our historic, cultural and archaeological heritage.

With that in mind, I have carefully considered our debate in Committee. We have had the opportunity to talk to colleagues in the Department for Culture, Media and Sport. While we are not prepared to widen the scope of the Bill, we are clear that the provisions in the Marine and Coastal Access Bill should complement future heritage protection legislation. On reflection, while the Bill allows cultural heritage to be taken into account in decision-making, I believe that some references could be strengthened.

I turn to my amendments before responding to that of the noble Lord, Lord Bridges. Amendment 82 seeks to clarify that the reference to culture in Clause 52(2)(a) includes historic and archaeological characteristics. The amendment essentially makes it clear that the historic and archaeological characteristics should be considered in the identification of marine plan areas and in the preparation and review of marine plans.

Amendment 111—which I have tabled to Clause 114, in Part 5—is similarly intended to clarify that any social consequences referenced in subsection (7) include historic and archaeological consequences, so the Secretary of State may therefore take into account the historic and archaeological consequences of marine conservation’s own site designations. I understand that noble Lords want to ensure that we are not only recognising and considering heritage in marine planning licensing and nature conservation, but that management of marine conservation zones will not undermine the work of bodies such as English Heritage which are tasked with protecting wrecks and other historic features.

I therefore reassure noble Lords that the Government are extremely committed to ensuring that the nature conservation provisions are compatible with the vital licensing and management work carried out by English Heritage in the preservation of historic wrecks within UK waters.

I draw the attention of the House to Clause 125(5), which specifically enables the MMO to make by-laws that allow for the issuing of permits under controlled circumstances. We expect that such permits will include the licensing of activities for the preservation or investigation of wrecks as well as permitting access to such sites. The MMO will be working closely with bodies such as English Heritage to agree this process, and this relationship is likely to be formalised through a Memorandum of Understanding, which will clarify how these respective roles will work effectively and efficiently to recognise both nature conservation and heritage interests. The amendments that I will move make a clear commitment to recognising our vital marine cultural heritage.

Let me address the amendment moved by the noble Lord, Lord Bridges. I was interested in his views and comments on HMS “Victory”, but I was somewhat

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taken aback by the suggestion that we should simply not deal with those aspects of the Bill that do not relate to coastal access. After our 11 days in Committee, this House is well able to come to a view on the totality of the Bill.

The amendment proposes that the objectives that the Secretary of State may set for the MMO should include the protection of items of archaeological interest on the seabed. As I have set out, in seeking to achieve its objective of contributing to the achievement of sustainable development, the MMO will be guided by the policies of the marine policy statement and, ultimately, by marine plans. This means that archaeological protection will be one of the many factors taken into account by the MMO when it is making decisions, so it is unnecessary to include this specific requirement in Clause 3. It will be a familiar argument to noble Lords that to do so would actually unbalance the MMO’s objective and imply that this factor is more important than other factors. The amendment would widen the focus of the MMO and the Bill beyond what we think is best both for the Bill and for future heritage protection legislation.

Although I do not think that Part 1 is the appropriate place to reference archaeology, heritage can be considered in the drafting of marine plans, in the licensing of marine activities and in considering the social and economic consequences of marine conservation zone designations within 12 nautical miles. I stress that, under the United Nations Convention on the Law of the Sea, the UK cannot make legislation for the protection of archaeological and historical objects beyond 12 nautical miles, except where naval vessels and other vessels owned or operated by a state and used only on government non-commercial service are concerned.

Clause 112(2), when read with Clause 66(1)(a), clearly provides that the marine licensing authority must have regard to the protection of any site that is of historic or archaeological interest when considering applications for a marine licence. Although we will not be able to license the removal of underwater cultural heritage directly beyond 12 nautical miles—we will be using the exemptions order in Clause 72 to ensure that we are compliant with the UN convention in this regard—this will provide some significant protection to wrecks beyond 12 nautical miles from other types of licensable marine activities that could otherwise damage such sites.

In line with the marine licensing provisions, and following reflection on our debate in Committee, marine planning and nature conservation powers can be strengthened in the way in which my amendments seek to do. While I suspect that the amendments do not go as far as the noble Lord would like, I think that they meet the general concerns that were expressed in Committee. I hope that this explanation at this point in our discussion will be helpful.

Lord Taylor of Holbeach: My Lords, I apologise to the Minister for being so keen to rise to support the amendments, as many noble Lords around the Chamber are. I thank the noble Lord, Lord Bridges, for introducing the amendment and I thank the Minister for speaking to his amendments in the group to address a concern that was raised in Committee by my noble friend Lady Hooper with our support. I am extremely glad that the

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ongoing conversation between the Minister and interested Peers has found a way forward and that the House has persuaded the Government of the importance of ensuring that the powers in the Bill can be used to protect these sites. I do not share the anxieties of the noble Lord, Lord Bridges, that the government amendments do not address his concern. The amendments have our support.

Lord Howarth of Newport: My Lords, the amendments that the Government have tabled, and the assurances that the Minister has just given the House, are extremely helpful. As the noble Baroness, Lady Hooper, has noted, the government amendments make it clear that historic and archaeological characteristics can be considered in the preparation and review of marine plans and when considering the consequences of marine conservation zone designations. My noble friend has also again placed on record the Government’s commitment to the protection of marine heritage and has stated that the nature conservation provisions of Clause 125(5) will be compatible with the licensing and management work that English Heritage carries out in the preservation of historic wrecks. His suggested Memorandum of Understanding between the MMO and English Heritage would be very useful if it clarifies their respective responsibilities. The only note of caution that I would strike is that, if we are to have by-laws passed by the Marine Management Organisation and licences issued by the DCMS, I hope that all concerned will do their best to ensure that there is the minimum of bureaucracy and complexity and that the system is navigable by the people who need to use it.

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