§ (1) Subsection (3) of section fourteen of the Ancient Monuments Consolidation and Amendment Act, 1913 (which exempts the owner of a monument from punishment under that section for injuring or defacing it, unless the Minister or a local authority is guardian of the monument) shall not apply to anything done after the passing of this Act, except—
- (a) in the case of a monument in respect of which an interim preservation notice or a preservation order is in force, anything done with the written consent of the Minister under subsection (1) of section thirteen of this Act;
- (b) in the case of any other monument, anything done more than three months after the owner has, in accordance with subsection (2) of section six of the Ancient Monuments Act, 1931, given to the Minister notice in writing of his intention to do that thing.
§ (2) Notwithstanding the preceding subsection, so much of subsection (1) of the said section fourteen as relates to the payment of 522 sums for repairing damage shall not apply to the owner of the monument, except in a case where the Minister or a local authority is guardian of the monument:.
§ (3) For the purpose of determining in any proceedings whether an injunction (whether restrictive of mandatory), or, in Scotland, an interdict or other order, should be granted for preventing or remedying a contravention of subsection (1) of section thirteen of this Act, no account shall be taken of the fact that a person has been or may be prosecuted in respect of the act in question by virtue of section fourteen of the said Act of 1913, as modified by this section.—[The Solicitor-General.]
§ Brought up, and read the First time.
§ The Solicitor-General (Sir Reginald Manningham-Buller)
I beg to move, "That the Clause be read a Second time."
In the course of the Committee stage an Amendment was moved in the hope of extending the operation of Clause 13 (1) of the Bill by inserting a reference to damage. For the reasons I advanced in Committee, it is inappropriate to make that alteration in that Clause. In the course of our debates in Committee the view was expressed, on both sides, that it was desirable to strengthen the law, if possible, so as to deter people from defacing or injuring ancient monuments.
It emerged that, under the law as it now is, while there is power to prosecute any person for injuring or defacing a monument, that power does not exist in relation to the owner of the monument unless it is under the guardianship of the Ministry of Works or a local authority. I undertook to consider in the short time available, whether or not some amendment of the law could be made to deal with that point. It is for that reason that the new Clause is on the Order Paper.
Under Section 14 of the Ancient Monuments Consolidation and Amendment Act, 1913, it is an offence for anyone other than the owner—and for the owner where the Ministry of Works or the local authority have been constituted guardians—to injure or deface any monument in respect of which the Ministry of Works or the local authority are the owners or guardians, or any monument which is the subject of a preservation order, or to which Section 14 applies by Order in Council—and now, by subsection (1, a) of this new Clause, any monument which is the subject of an interim preservation notice.
523 The new Clause will have the effect of making it possible to prosecute an owner who injures and defaces a monument. At the same time, we have taken steps to secure that the remedy of an injunction which is available for a breach of Clause 13 (1), when there is any removal or demolition of or addition to or alteration of an ancient monument without the consent of the Ministry of Works, can still be open where the conduct of the owner or other person amounts to an infringement of the obligation placed upon him by Clause 13 (1). I hope that the new Clause goes a considerable way to meet points of view put forward on both sides during the Committee stage and I think it will certainly mean an improvement in our law.
§ Mr. N. Nicolson
I apologise for detaining the House for two or three minutes but I do so because it seems to me that this new Clause is the central point not only of this Part of the Bill but also of all our law relating to ancient monuments, and because discussion upon it was unfortunately curtailed in Committee through lack of time. I thank the Solicitor-General for having gone at least some of the way to meet the points which we advanced in Committee, but I am afraid I cannot say that I think he has gone all the way to meet what we want done.
The immediate object of the new Clause is to remove the absurd anomaly whereby an owner of an ancient monument cannot be prosecuted for defacing it, but it leaves in some doubt what is the meaning of the words "injure or deface" used in the relevant section of the 1913 Act. In the last 40 years has there been an interpretation of those words in the courts? Do they, for instance, include damage through neglect or carelessness or use which may be perfectly proper in one sense but may be damaging to the monument?
If I were a member of a court interpreting the new Clause instead of a Member of this House discussing how it should be phrased, I should not be inclined to interpret the phrase "injure or deface" to include those categories which I have mentioned, and I think it is a great pity that my hon. and learned Friend has not been able so to rephrase the Clause that it includes those categories. After 524 all, damage to an ancient monument is very seldom wilful but is often done through ignorance or, possibly, indifference.
The Solicitor-General will not agree to put into an Act of Parliament a Clause which makes it obligatory upon an owner to protect a monument by spending money upon its upkeep or by losing money through refraining from using that part of the land on which the monument stands for a purpose which might otherwise be harmless and for which he would normally use it. Could my hon. and learned Friend not make it quite clear that the owner is under an obligation to take all reasonable care of the monument which happens to stand in his field? Could he not re-phrase the Clause in that way so that an owner would, for instance, be obliged to put his cattle, which might otherwise damage a very important prehistoric or local monument, in another field instead of in the field in which the monument stands?
Of course, that would be an inconvenience to the owner, but it is always an inconvenience to have an ancient monument upon your property. Recently, I was engaged in negotiating for the purchase of a farm in Wiltshire which had three scheduled monuments upon it and, quite rightly, the solicitors who acted for us pointed out the existence of those monuments as a drawback to the property, which we accepted, just as we should have accepted an outcrop of natural rock in the middle of a field, as detracting from its value.
It seems to me, having very carefully re-read the Solicitor-General's arguments in the Standing Committee, that there is a slight inconsistency here, because in some cases we put an obligation upon an owner to look after an ancient monument, as we allow him under this very Bill certain compensation if, in having to look after a monument, he loses money. In Clause 13 (5) it is said thatIf … it appears to the Minister that owing to neglect the monument is liable to fall into decay, the Minister may, with the consent of the Treasury, make an order…that is, a guardianship order for that monument.
But the trouble is the Treasury will so seldom consent, and my right hon. Friend has so little money with which to take 525 monuments under his guardianship. Unless something is done I am afraid that the greater number of monuments will never be under the Minister's guardianship but will remain in private ownership and I would ask even at this late stage my right hon. Friend to incorporate in the Bill some words the effect of which would be to make owners look after monuments on their land.
What is the object of the Ancient Monuments Act? It is to protect ancient monuments. That signifies that we have reached a stage of civilisation in which we regard the monuments of previous civilisations as worthy of preservation for our own sake and for their sake and the records they embody. If a monument is destroyed either the principal Act is too weak or it is weakly administered, and I think that in this particular case both are true. The Act is weakly administered because my right hon. Friend is short of staff and money with which to look after the monuments. In this Bill we have an opportunity to strengthen the principal Act itself, and not only by administrative means but by altering the penalties for wilful damage or for neglect which leads to the damage of a monument, to help to protect the monuments.
We have a priceless record of antiquity in this country. Foreign archaeologists who come to England are astonished at the wealth we have in this respect, but they are equally astonished at the neglect with which we treat our monuments. Even at this late stage I do beg my right hon. Friend to look at this matter again.
§ Mr. R. W. Sorensen (Leyton)
While I sympathise considerably with the remarks made by the hon. Member for Bournemouth, East and Christchurch (Mr. N. Nicolson), I would point out that in Clause 4 it is laid down that the Minister may out of moneys provided by Parliament make grants for the purpose of defraying in whole or in part any expenditure necessary, and that in some measure at least the problem raised by the hon. Gentleman opposite is met, because if the Minister makes grants, presumably through the Historical Buildings Council for one of the three countries, it is up to the Minister to see that the money so granted is spent in the way he decides.
I should like the opinion of the Solicitor-General upon this, but surely if the 526 money which is granted is not used for the purposes for which it was granted the Minister or the Council can take action, on the ground that the recipient of the money is defrauding the Government themselves. I am not sure whether this really does meet the hon. Gentleman's point, but it seems to me that in that Clause there is a safeguard in some measure, and also in Clause 6. I should like to know what the legal opinion on this matter is.
§ Mr. Godfrey Nicholson (Farnham)
I think the hon. Member for Leyton (Mr. Sorensen) is referring to a different Part of the Bill. The part he is referring to is about historical buildings. The Part my hon. Friend the Member for Bournemouth, East and Christchurch (Mr. N. Nicolson) was talking about is concerned with ancient monuments. I want to follow the point taken by my hon. Friend. He has taken a leading part in the discussions on this Bill, and we all have great esteem for him although he belongs to a branch of my family which has not an "h" to its name.
I am anxious to be reassured by the Solicitor-General that this new Clause covers effectively damage to earthworks. People speak of ancient monuments as though they are historic buildings, but the large majority of ancient monuments are earthworks—barrows, prehistoric camps, dykes, ditches. They are susceptible of a peculiar type of damage which it is difficult to define. For instance, if a prehistoric camp or barrow is constantly ploughed over it is very difficult to say at what moment it is being defaced, injured or damaged. The result is that after some years of such treatment that earthwork completely vanishes and, for all effective purposes, is destroyed.
I was very anxious that the Government should accept an Amendment to Clause 12, which is now Clause 13—that the word "damaged," or "defaced," or "injured," or some similar word, should be incorporated—but that was resisted. I am still not satisfied that the new Clause covers those cases of damage, and I should like to ask the Solicitor-General this specific question. If a man with an earthwork, barrow or camp on his land persistently ploughs over it, or once or twice, is he liable under the new Clause? 527 If he makes a track or road for his tractor that goes over such an earthwork and gradually wears down the earthwork a foot or two each year, is he liable under the new Clause? If he makes a track for his cattle that wears a gap through such an earthwork, is he answerable under the new Clause?
I feel that in the new Clause the Government are taking powers, but they are not quite sure how they will be interpreted by the courts. I hope the House will not leave the new Clause without a definite assurance from my hon. and learned Friend that the sorts of categories of injury that I have specified will be dealt with adequately.
§ Mr. E. Fletcher
I have a great deal of sympathy with what the hon. Member for Farnham (Mr. Nicholson) has said. One of our difficulties in dealing with this Bill is the extreme rapidity with which we have had to discuss it since it had a Second Reading less than three weeks ago. It is unfortunate for all of us that it was introduced so late in the Session, and if we had had a longer time in which to study it we should have been able to suggest a number of further improvements on the lines suggested by the hon. Member for Farnham.
A number of Amendments have already been made as a result of the rather short but highly intensive Committee stage which we had upstairs, and I want to thank the Solicitor-General, because I think he has done his best in the relatively short time that has passed since this point arose in the Standing Committee last Thursday until this new Clause was put on the Order Paper yesterday or the day before. I think the new Clause is in peculiarly cumbersome language, but that may be inevitable, and, without wishing to be patronising in any way, I thought it gave effect to the specific points which were discussed in our debate upstairs.
Further reflection has led me to think, as it did the hon. Member for Farnham, that if time permitted it would be desirable to carry the matter still further, because, as the hon. Member for Bournemouth, East and Christchurch (Mr. N. Nicolson) said, this is a crucial part of the Bill. It is upon this new Clause and its related provisions in the Act of 528 1931 that everything ultimately depends for the preservation of these ancient monuments, and I would have hoped that there would be an opportunity, perhaps in another place, to strengthen the new Clause further.
The words "injuring or defacing" do not seem apt to deal with the kind of offence which arises when an ancient monument is allowed to fall into disrepair, and I should have thought that it might be possible to add, after the words "injuring or defacing." words such as "or allowing it to fall into disrepair." I merely throw that out as a suggestion for the Minister and his legal advisers to consider.
I wish to make one other observation. I do not think that my hon. Friend the Member for Leyton (Mr. Sorensen) was really very far astray when he made some remarks about Clause 4. We are dealing in this Bill not only with ancient monuments but also with historic houses. In connection with both historic houses and ancient monuments it will be observed from Clause 13, which is referred to in the new Clause, that unhappily circumstances will sometimes arise in which either a historic house is to be demolished or an ancient monument is to disappear as a result of modern conditions of one kind or another.
I hope that when unhappily that event occurs—we shall preserve what historic houses we can: there will be some that will be lost—and the Minister has to give a licence for the demolition of a house or to permit the owner to alter an ancient monument, he will take care to insist in every case that adequate photographic and other records are taken before the licence is issued. I hope that we shall be given an assurance that the Minister thinks he has adequate powers in that respect or, if not, that he will take some opportunity of asking for power to do so.
§ The Solicitor-General
I can reply to the questions only by leave of the House. I should like to start by thanking the hon. Member for Islington, East (Mr. E. Fletcher) for his kind observations about the new Clause which has met, I am sorry to say, with more criticism than praise. I should like to make it clear that the omission of any provision to make it a criminal offence not to exercise reasonable care and the omission of any provision to make it a criminal offence 529 to allow an ancient monument to fall into disrepair has been perfectly deliberate. It was carefully considered whether this Clause should go wider than it does, and it was decided that it should not for reasons which I will expound as briefly as I can.
First, I do not believe that we shall secure the proper preservation of ancient monuments merely by creating criminal offences in Acts of Parliament. What we want to do is to get people to appreciate the importance and the value of ancient monuments. I think that that can be better done than by creating extensive criminal offences.
Second, under the new Clause as drafted, and under Section 14 of the Act of 1913, in order to secure a conviction, it is necessary to establish some deliberate positive action which defaces or injures the ancient monument. It will not suffice, in my view, merely to establish that an ancient monument has been injured or defaced merely as a result of inaction or neglect. To constitute a criminal offence proof of some positive action will be required. I think that is desirable.
If it were made a criminal offence to fail to take reasonable care of an ancient monument it would be casting a tremendous obligation, varying in extent with the nature of the ancient monuments and the expense which would have to be incurred in keeping them in repair, upon people all over the country in different walks of life; and it would be making failure to spend their money on keeping an ancient monument in repair a criminal offence. That would be a bold proposal and, in my view, an unwarrantable extension of our criminal law.
The hon. Member for Leyton (Mr. Sorensen) suggested that under Clause 4 it would be possible to spend money on ancient monuments. Unfortunately, or perhaps fortunately, there is a distinction drawn in the Measure between historic buildings and prehistoric buildings and ancient monuments. The hon. Member for Farnham (Mr. Nicholson) was correct in his observations.
§ Mr. Sorensen
Will the hon. and learned Gentleman say why the provision made with regard to ancient buildings could not be made with regard to ancient monuments?
§ The Solicitor-General
At such short notice I am afraid I cannot answer that. I am certain that my right hon. Friend, carefully considered it before introducing the Bill.
The hon. Member for Farnham raised the question of damage to earthworks. He stressed that they might disappear if constantly ploughed. So might they be worn away if hundreds of people went to see them and walked over them in wet weather. No doubt many earthworks were damaged by the flooding which was suffered in January. The only answer I can give my hon. Friend is that if, on the evidence before it, the court came to the conclusion that there had been a deliberate act by the accused causing an ancient monument to be defaced or injured, the court would be entitled to convict. It really is better to leave the words "injured or defaced" clear, and not to seek to restrict them by extensive definition but to leave it to the courts to decide whether, in the particular circumstances of the case and on the evidence before the court, it is proved that an offence has been committed.
For these reasons I hope that my hon. Friend, whose concern for the preservation of ancient monuments is well-known, will recognise that it would be wrong to make it a criminal offence merely to stand by and do nothing in relation to an ancient monument when the standing by and inaction would lead to its getting into a worse state of disrepair, when it might be that the moral obligation of trying to keep an ancient monument in existence will be more easily recognised in view of what has been said in the course of this debate.
§ Mr. Hugh Dalton (Bishop Auckland)
I do not want to delay the passage of this Bill. There is another place. Would it be possible, in view of the discussion, particularly regarding the definition, for the meaning of terms, and especially the term, "injury," to be looked at again with a view to the possibility of some Amendment, if necessary, in another place, to carry out the purposes of my hon. Friend? We should be happy if the Solicitor-General would look at this again, with other persons learned in the law. For example, ploughing an ancient bank would be a positive action and not mere neglect, and I think it is such positive action that the hon. Member for 531 Farnham (Mr. Nicholson) had in mind. Conceivably these words cover that. We should like to be assured that so far as possible the kind of action referred to by the hon. Member in particular is guarded against.
§ 10.45 p.m.
§ Mr. Nicholson
May I thank the Solicitor-General for what he has said? All that is necessary is for an earthwork to be left alone. A man farming land on which there is an earthwork may, quite innocently, cause damage to it in the ways I have enumerated. I wish to reinforce what has been said by the right hon. Member for Bishop Auckland (Mr. Dalton), and I hope that this matter will receive sympathetic consideration. It is rather misleading to refer to "ancient monuments" in this connection as people visualise a structure. But all that is necessary is that these earthworks shall be left alone.
§ The Solicitor-General
Again I may reply only by leave of the House. I recognise that the right hon. Gentleman desires only to be helpful in this matter. I thought I made clear that in my view it would be quite wrong to make it a criminal offence of which people could be found guilty, unless it was found that there had been a wilful act to cause damage. If, for example, it was possible to prove that a bulldozer had been taken to make a gap in an ancient earthwork, I imagine the court would have no difficulty in coming to the conclusion that an offence had been committed.
But a question of ploughing must depend on the circumstances. If, for example, an earthwork encroached only on a corner of a field, and the person ploughing damaged it accidentally, the court might consider the intent to damage was absent. I do not think we can improve the new Clause by adding further words to it. The word "injure" is wide, and we may leave the matter to the good sense of the magistrates. With Clause 14 extended as it is by this new Clause there can be prosecutions against all persons, including the owner of an ancient monument.
§ Question put, and agreed to.
§ Clause read a Second time and added to the Bill.