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I am speaking to Amendment 74 to deal with another aspect, because an element of metal detecting is not legal. English Heritage’s report on night hawking has shown the scale of the problem. There is the problem of a secondary market whereby people are able to destroy ancient monuments, dig up items of treasure and sell them. The issue is that the internet and sites such as eBay have made it possible for people to find a marketplace for goods which, ultimately, have destroyed much of the archaeological value of many scheduled monuments and other monuments. This issue should be looked at not just in a monetary sense. Violence has been involved in night hawking and it has been a major problem for landowners.

The problem we face is that many other European countries have looked at this issue and raised it with internet sites. As those countries have more stringent provision, those internet sites take the issue far more seriously. The purpose of my amendment is to raise a specific issue. Why is it impossible for the archaeological community to discuss with officials the substance of this amendment, even though the Minister has given assurances that that would not be the case? It has not even been discussed. This matter is of vital importance and its scale should not be underestimated. A Portable Antiquities Scheme survey found that the amount of treasure traffic on eBay was considerable and growing.

Before we bring the amendment back at a later stage, I should like the Minister at this point to initiate a meeting on this issue between officials and members of the archaeological community to find out why we cannot even discuss the matter. I do not intend to press the amendment this evening, although I cannot speak for my noble colleague, the noble Lord, Lord Howarth of Newport. I hope that we can have that discussion before the next stage of the Bill, because the issue is of such importance that it may be worth testing the opinion of the House on it, as we will not get the opportunity to debate it again for a long time.

Lord Brooke of Sutton Mandeville: I will, first, gently disclaim the Minister conferring on me the honour of being Lord Brooke of Stoke Mandeville. My title of Sutton Mandeville, perhaps appositely, refers to a medieval village with evidence of a Saxon watchtower on the site of the present church tower, which is early English and is listed as two-starred.



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Lord Bach: I apologise profusely to the noble Lord. I have an excuse for saying Stoke Mandeville. I will not tell him what that is, but I apologise.

Lord Brooke of Sutton Mandeville: I hasten to say in reply that I regarded it totally as a compliment.

My proposed new clause after Clause 21 deals with two of the issues covered by the government new clauses after Clause 24, to which the Minister so admirably spoke. I should record that similarities in drafting between my amendment and his are purely incidental, and, in an important respect, different. My proposed new clause deals specifically with the City of London, rather than as a general provision.

The Minister has given an account of the new provisions, so I shall be brief outlining the City of London context. The City of London has a treasure franchise as the result of a number of royal charters granted between 1444 and 1663. The franchise entitles the City to claim treasure which does not, therefore, pass to the Crown. The Museum of London, which the City Corporation jointly funds with the Greater London Authority, is given the first opportunity to acquire treasure subject to the City's franchise for public display.

7.15 pm

Of course, not all finds of treasure are wanted by the Museum of London. Where a find is not wanted, the general rule is that the objects are returned to the finder. In other words, the City disclaims its entitlement to the treasure. The problem in the present law is that the Treasure Act 1996 allows the Crown to disclaim its entitlement to treasure, but does not make similar provision for the City of London as a franchise holder or for other franchise holders, for that matter. The first purpose of my new clause is to deal with this ambiguity.

Subsections (2) and (4) of the government new clause to which the Minister referred, taken with subsections (1) and (2) of the second government new clause, provide a system enabling a treasure franchisee, and therefore the City of London, to disclaim finds of treasure. They therefore deal with the issue which my new clause addresses. The Minister’s optimism about my reaction to his new clauses was correct.

The second purpose of my new clause is to make clear that there is no need for a treasure inquest where the City as franchise holder has renounced its right to claim the find. This has been a matter of concern to the City Corporation and to the City Coroner, and clarification of the law to make clear that no inquest is needed is highly desirable. That clarification is provided by subsections (4)(b) and (c) of government Amendment 84 in the form of a general provision which includes the City.

There are, however, two other points I should like to mention arising from the government new clauses. First, there is no requirement on the new treasure coroner to notify a franchise holder that a find which might be treasure has been made. Clearly a franchise holder will be an interested party as, unless disclaimed, the treasure will belong to that franchise holder. In the City’s case, it provides the City with the opportunity to exercise its entitlement on behalf of the Museum of London to secure public display of important finds.



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The notice procedure for Treasure which belongs to the Crown—which is the general position—is already catered for by Section 9 of the Treasure Act 1996. That requires coroners to notify the British Museum, which decides whether finds should be claimed by the Crown or returned to finders. There is no equivalent provision for treasure franchisees under the 1996 Act. Although finds of what amount to treasure usually come to the notice of the City or are notified by the coroner once known to him, it would seem appropriate to have an equivalent provision to the existing requirements in relation to finds which became property of the Crown as those that are subject to a treasure franchise, as in the City of London.

Secondly, the new clauses set out the general scheme for the new treasure coroner and assistant treasure coroners. The City of London is, of course, the oldest part of the capital and finds of treasure are fairly frequent. It has been said that the City has been for the past 25 years the largest archaeological site in the world—certainly in Europe—because of what has been discovered below it. The Museum of London looks after one of the world’s leading archaeological research facilities, the London Archaeological Archive and Research Centre. I hope that the review of the work of coroners in relation to treasure inquests, which the Government’s new clauses will prompt, will take full account of the important part played by the City Coroner in the treasure jurisdiction. I shall be wholly reassured if the Minister responds on both these issues in the affirmative. In the mean time, I acknowledge that the Government’s new clauses cover the substance of my new clause. Although I am speaking to Amendment 73 after the noble Lord, Lord Redesdale, spoke to Amendment 74, I take this opportunity to support that amendment too. I was once the Secretary of State who encouraged the late Earl of Perth to pursue what became the Treasure Act 1996. His spirit would be happy to see the furrow continuing to be ploughed so sensitively by his successors. I thank the Minister and the Government for all their work in this area.

Lord Howarth of Newport: I, too, welcome the government amendments in this group that give effect to the Minister’s pledge at Second Reading to establish a national coroner for treasure. I also welcome the amendments that would give effect to the Government’s decision to extend the period permitted for prosecutions under the Treasure Act, about which he spoke just now. However, despite what my noble friend said, I do not think that the Government’s response is yet comprehensive. I am sorry that he has not agreed to one of the other proposals that I made at Second Reading, which was more fully and better expounded by the noble Lord, Lord Redesdale. It is the subject of Amendment 74, which the noble Lord has just moved. I greatly look forward to hearing the observations on this amendment, as I hope we shall, from the noble Lord, Lord Renfrew, who is the doyen of parliamentary archaeologists—or should I say archaeological parliamentarians?

Proposed new Section 8A in Amendment 74 would extend the duty to report a find to anyone who came into possession of an object where they had grounds

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to believe that it was treasure and had not previously been duly reported. This was in the Government’s own draft Bill. The reasons for its omission from the Bill as finally published were explained by the Minister, Bridget Prentice, in Committee in another place on 24 February and again by my noble friend in his letter of 22 May, which has been copied to many colleagues. My noble friend said,

“We are not convinced that it would be practical to monitor this wider duty, and it would inundate the Coroner for Treasure with finds which are not treasure within the meaning of the Act or finds which have already been investigated”.

I add my plea to my noble friend and to the Government to think again. He says that it would not be practical to monitor this wider duty. There are duties under a great many laws that we do not monitor—if we did, we really would live under a Big Brother state. The law should establish particular duties and offences, and then it is the responsibility of the citizen to abide by them.

We need to close what some dealers and collectors unfortunately take to be a loophole. At present, the duty in Section 8(1) of the Treasure Act to report treasure rests solely with those who find the treasure in the first instance. Someone who subsequently comes into possession of an item of treasure and who may know or suspect that that item has been unreported may believe from reading the Treasure Act that they are in the clear if they hang on to the object, and indeed if they deal in it. I am advised that Section 329 of the Proceeds of Crime Act 2002 makes it an offence to be in possession of stolen property—in the case of potential treasure, property of the Crown or perhaps of the landowner. However, the Treasure Act 1996, in contrast to most of our laws, allows ignorance of the law to be a defence. Only someone who can be proved to have intentionally broken the law is liable to prosecution. Currently, the administrators of the Portable Antiquities Scheme seek to advise anyone who finds himself in possession of unreported treasure—perhaps a dealer in antiquities or someone who inherits an object—to report it, but it is hard to reach everyone and advice is no more than advice, so it is a weak position. Some dealers may be genuinely hazy as to their legal responsibilities; others, I think, are deliberately evasive about the legal position. Either way, it is not satisfactory.

For nearly three years, the British Museum has had an agreement with eBay to monitor its site for potential treasure. Of the 302 sellers of potential treasure questioned by British Museum staff, 6 per cent claimed that the find was an old find and therefore did not need to be reported; 2 per cent said that it was the finder’s responsibility and not theirs to report; 26 per cent said that the find spot was not known—that is a very important finding; 18.5 per cent said that the find was foreign; 16.5 per cent gave other reasons why the find need not be reported; 22 per cent did not respond at all; and only 9 per cent of those questioned said that they would indeed report. It is evident, therefore, that vendors are buying potential treasure finds without carrying out due diligence. If the obligation to report were widened, as this amendment proposes, then the duty of due diligence would be strengthened, and there would be a new pressure on dodgy dealers.



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I emphasise that there are wholly respectable dealers within the United Kingdom antiquities market. Worryingly and shamingly, however, a number of dealers and collectors in Britain are not respectable. I shall illustrate this from another context. We have recently read reports about illegal excavations in Afghanistan: 1,500 items are reported as having been looted there and intercepted at Heathrow. The National Museum in Kabul has put on an exhibition of artefacts recovered from Britain. It is a disgrace that there are dealers and collectors who are prepared to collude with this kind of looting, whether from sites of very important heritage abroad or of treasure in this country. We must deter such behaviour. We need to increase the powers of the police; we need to improve the practice and ethos of the antiquities trade; and we need to improve the reputation of the London market.

Those would all be benefits of Amendment 74 and they would be important benefits, even if the coroner for treasure were to be inundated, as the Minister fears. In fact, I do not think that the coroner for treasure would be likely to be inundated. If this amendment were on the statute book, dealers would be deterred from acquiring items that might be unreported treasure. In any case, dealers will not want to report where they do not need to do so. They do not want to get bogged down in paperwork, and they do not want the delays and the blight on being able to sell as an item passes into the coroner’s limbo. In practice, 97 per cent of treasure cases are reported to a finds liaison officer employed under the Portable Antiquities Scheme and not directly to the coroner. These finds are then filtered through the finds liaison officer and British Museum experts. Another amendment might usefully state that a report can be made to a person nominated by the coroner for treasure and not directly and literally to the coroner for treasure. We should also supplement the stick with the carrot and extend the existing statutory reward scheme for reporting to third parties who report.

The Minister says that, rather than have this amendment, a better course would be to improve awareness of the duties under the law. We should do that anyway. To that end, he says that his department will work with those who are involved with the Portable Antiquities Scheme—the DCMS, the British Museum, the National Council for Metal Detecting and the Council for British Archaeology. The noble Lord, Lord Redesdale, raised this question. Will my noble friend tell the House what the timescale for this consultation and co-operation will be? I understand that the DCMS has been saying that it cannot discuss the proposed way forward with the British Museum, which has a statutory duty to administer the provisions of the Treasure Act, until after this Committee stage debate. Why the delay? Will he commit his department to embarking on this process straight away?

The first part of Amendment 74—the proposed new Section 8A—is supported by the All-Party Parliamentary Archaeology Group, which consists of 135 members of all parties in both Houses; by the Treasure Evaluation Committee, which was appointed by the Secretary of State to advise the Government and affirmed its support for the amendment at its meeting on 17 June; by UK Detector Net, an online

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forum for metal detector users which has 2,800 members; by the Institute of Archaeology at University College, London, a foremost school of archaeology; by the Council for British Archaeology; and by the Society of Antiquaries of London. I hope that it will also be supported by the Government.

We can dispose very quickly of proposed new Section 8B, the second part of the amendment. This would give the coroner for treasure the power to require any person to hand over any object which, for the time being, the person had control of and which the coroner proposed to investigate as potential treasure. Bridget Prentice said in Committee on 24 February:

“There has never been a case under the current system where anyone has refused to hand over an item”.—[Official Report, Commons, Coroners and Justice Bill Committee, 24/2/09; col. 299.]

Since then, such a case has occurred—a 14th century silver piedfort—and that case is now in the hands of the police. However, my noble friend, in his letter of 22 May, has satisfied me that paragraph 1 of Schedule 4, as amended by amendments in this group, will provide the coroner for treasure with the requisite powers. So I think that proposed new Section 8B should be dropped from Amendment 74 if we find it necessary to retable it on Report. However, I hope that my noble friend will undertake to consider carefully the case that we have put forward and himself table on Report an amendment proposing new Section 8A, perhaps refined, as a government amendment.

7.30 pm

Lord Renfrew of Kaimsthorn: First, I strongly support the government amendments, which are admirable. The Government have a very good record in this area. They have supported the working of the Treasure Act and they have admirably put resources into the finds liaison officer scheme, for which the heritage community and archaeologists are very deeply grateful.

So I think the Government have a very good record in this area. They also, in the end, supported—I am not saying that they initiated it—the Dealing in Cultural Objects (Offences) Act 2003, which is an important part of the protection of the archaeological heritage. We are therefore very grateful to the Government for the amendments which have been proposed, including the coroner for treasure. We have nothing but praise for those elements, but that makes it all the more strange—as the noble Lords, Lord Redesdale and Lord Howarth of Newport, have indicated—that Amendment 74 has not yet been supported by the Government. Indeed, we are mildly surprised that it was not proposed by the Government, since there were earlier hints that such might have been the case.

The case for that amendment has been admirably set out by my noble colleagues, so I will not repeat the arguments at length. But it is clearly a great lacuna in the present legislation that the only person responsible for reporting a treasure find is the finder. Naturally, the finder should be responsible: that is the basis of the 1996 Act. It has been demonstrated through experience, however, that that is insufficient. It is clearly the case that, if a dealer is offered an object that he suspects is a treasure find—something found in recent years and obviously a gold or silver antiquity found

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on British soil—there should clearly be an obligation on him to report the find. That is a serious lacuna in the present Bill.

As the noble Lords who have spoken have indicated, the matter is complicated by the existence of eBay. A lot of the traffic in antiquities, including illicit antiquities, is now conducted by eBay, so it is important to have a legislative framework, which is now lacking. So far, it has been very difficult to understand what the Government’s objections are to this admirable Amendment 74, which was clearly in the mind of the Government at an earlier stage. I hope that the Minister will give us a very clear analysis. I think the noble Lord, Lord Howarth, has made very clear that it is unlikely that we shall be inundated by treasure finds, and if we were inundated by newly reported treasure finds, it would be a very brief inundation before the situation settled down. Moreover, it is the present case that coroners are assisted by the finds liaison officers, who very often, in practice, make the necessary investigations. That could happen if there were a spate of treasure reportings in the light of the acceptance of this amendment.

So, like the noble Lord, Lord Redesdale, I will be listening very carefully to the Minister’s answer on this point. The archaeological community are as one on the matter. The noble Lord, Lord Howarth, has mentioned that there are metal detectorists who support the All-Party Parliamentary Archaeology Group. It is very significant that the Treasure Valuation Committee, which is appointed by the Secretary of State, unanimously supports the amendment, so it is very difficult to understand what the grounds are for opposing it. For that reason, I will listen to the Minister with particular care when he addresses us in just a moment. I hope that this amendment will be brought forward on Report once again if we are not totally convinced—I know the Minister is very eloquent—by his arguments. I warmly support the amendment.

Lord Bach: I congratulate the all-party group on its success thus far in persuading us, along with other parties too, to change our minds, and for bringing these amendments to Committee today. When the noble Lord, Lord Renfrew, started praising the Government in such eloquent terms—if I may use that phrase—it was a very refreshing change from what one sometimes hears in this House and elsewhere. But I should have known, of course, that there was a “but”—or a “however” in his case—and indeed there was. I will do my best to deal with this issue shortly this evening.

One thing I can say is that I make the following concession—though it is not really a concession at all at this stage. That is, of course, that we will meet with noble Lords and others between now and Report to discuss the first part of Amendment 74, in the name of the noble Lord, Lord Redesdale. We will certainly arrange a meeting; there is no reason whatever for not having one.

There are two points raised by noble Lords on Amendment 74. The amendment seeks to extend the duty to report treasure finds to those in possession of objects as well as the finders of such objects. Secondly,

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the amendment seeks to impose a duty on those in possession of objects to deliver them to the coroner for treasure. We accept that there is widespread support for the amendment: there is no reason to disbelieve that at all. But our conclusion, on reflection, is that it just would not be appropriate to go that far to widen the obligation to report treasure finds. Of course, there may well be finders selling treasure items and not reporting them, and those finders remain liable for offences. The real reason why we cannot accept the amendment is that we are just not convinced that it would be practical to monitor this wider duty. In spite of what has been said in Committee tonight, we feel there could be a great deal more work for the coroner for treasure, with finds which perhaps are not treasure within the meaning of the Act, or finds which have already been investigated.

Our reasoning has been put in the letter mentioned by my noble friend Lord Howarth. We believe that a better course would be to improve awareness of the existing duty to report finds among those with an interest in the treasure system. I will repeat what is in the letter: we will continue to work with the members of the various groups that were mentioned by my noble friend to try to solve the undoubted problem that exists.

Lord Redesdale: This is an issue that was raised in the Dealing in Cultural Objects Act. As the Minister has very kindly agreed that a meeting could take place, there is a slight problem that if one goes to one of those internet sites, they do say that they are not actually dealing in the objects themselves—they are just information providers. Without their services, however, it would be impossible to sell these objects. Of course, it is creating a market place which is growing, and I very much hope that the Minister—though he points out that it might provide a great deal of work for the coroner—would recognise that some incredibly important item could end up on eBay and it would be almost impossible to pull it up under the Treasure Act. If the Rudge cup had ended up on eBay, there would have been an outrage, but there is nothing to stop something of such significant value ending up in this position. The recourse of the archaeological community to stop the sale would be very limited indeed.

Lord Bach: I take the noble Lord’s point, and it will no doubt form part of the discussion we will enjoy between now and Report. As to the second part of Amendment 74, my noble friend Lord Howarth dealt with it successfully. The bespoke duty to deliver objects is no longer necessary, given that our own government amendments will extend to the coroner for treasure the powers of senior coroners in paragraphs 1 and 2 of Schedule 4. As a result, the coroner for treasure will have the power to issue a notice requiring a person to produce an object to him or her for inspection, examination or testing. We believe this approach will adequately address the point.


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