Lords amendment: No. 1, in page 1, line 1, leave out from beginning to end of line 34 on page 2 and insert—
(1) This Act applies to any aircraft which has crashed (whether before or after the passing of this Act) while in military service.
(2) Subject to the following provisions of this section, the Secretary of State may by order made by statutory instrument—
(3) The Secretary of State shall not designate a vessel as a vessel to which this Act applies unless it appears to him—
(4) The Secretary of State shall not designate any area as a controlled site in respect of any remains of an aircraft or vessel which has crashed, sunk or been stranded unless it appears to him—
(5) An area designated as a controlled site shall not extend further around any place appearing to the Secretary of State to comprise remains of an aircraft or vessel which has crashed, sunk or been stranded while in military service than appears to him appropriate for the purpose of protecting or preserving those remains or on account of the difficulty of identifying that place;
§ Mr. Michael Mates (Hampshire, East)
I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Speaker
With this it will be convenient to discuss the following Lords amendments: No. 2, in page 2, line 37, at end insert— 1288(5A) For the purposes of this Act a place (whether in the United Kingdom, in United Kingdom waters or in international waters) is a protected place if—No 3, in line 41, leave out subsection (7) and insert—
but no place in international waters shall be a protected place but virtue of its comprising remains of an aircraft or vessel which has crashed, sunk or been stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom.
- (a) it comprises the remains of, or of a substantial part of, an aircraft or vessel to which this Act applies; and
- (b) it is on or in the sea bed or is the place, or in the immediate vicinity of the place, where the remains were left by the crash, sinking or standing of that aircraft or vessel;(7) The Secretary of State may by order made by statutory instrument substitute references to a later date for the reference in subsection (3)(a) above to 4th August 1914 or for any reference to a date which is inserted by an order under this subsection; and a statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.No. 4, in clause 2, page 3, line 9, leave out "is, or"
No. 5, in line 12, leave outto which this Act appliesand insertwhich has crashed, sunk or been stranded while in military serviceNo. 7, leave out lines 32 to 36.
No. 8, in line 42, leave out "is, or"
No. 9, in page 4, line 5, leave out(whether or not the place is, orand insertor in a place whichNo. 10, in line 10, leave outto which this Act appliesand insertwhich has crashed, sunk or been stranded while in military service.No. 11, in line 12, leave out subsection (4) and insert—(4)In proceedings against any person for an offence under this section, it shall be a defence for that person to show that what he did or, as the case may be, what he caused or permitted to be done was done under and in accordance with a licence under section 4 below.No. 12, in page 4, line 19, leave out "is not, and".
No. 13, in page 4, line 24, leave out from "place" to end of line 27.
No. 15, in line 38, leave out subsection (8) and insert—(8) References in this section to any remains which are comprised in a protected place or to any remains which are comprised in a place which is part of a controlled site include references to remains other than those by virtue of which that place is a protected place or, as the case may be, to remains other than those in respect of which that site was or could have been designated.No. 16, in clause 4, page 5, line 43, leave out, "under section 1(4) above" and insert "designating a controlled site"
No. 17, in page 6, line 5, leave outof an aircraft or vessel to which this Act appliesand insertto which the licence relatesNo. 18, in line 11, leave out "under section 1(4) above" and insert "designating a controlled site"
No. 19, in line 23, leave outto which this Act appliesNo. 21, in clause 9, page 8, line 33, after "a" insert "hovercraft,"
No. 22, in line 37, leave out from "site"" to end of line 38 and insert 1289means any area which is designated as such a site under section 1 above;No. 23, in page 9, line 3, at end insert—"military service" shall be construed in accordance with subsection (1A) below;No. 24, in line,7, leave out "section 1(2)" and insert "section 1(5A)"
No. 25, in line 12, after "voyage" insert(including in the case of a vessel, any aircraft which were on board)No. 26, in line 21, at end insert—(1A) For the purposes of this Act an aircraft or vessel shall he regarded as having been in military service at a particular time if at that time it was—
- (a) in service with, or being used for the purposes of, any of the armed forces of the United Kingdom or any other country or territory; or
- (b) in the case of any aircraft, being taken from one place to another for delivery into service with any of the armed forces of the United Kingdom.(1B) Where a place comprising the remains of, or of a substantial part of, an aircraft or vessel which has crashed, sunk or been stranded while in military service is situated only partly in United Kingdom waters, that place shall be treated for the purposes of this Act as if the part which is situated in United Kingdom waters and the part which is situated in the United Kingdom: or in international waters were separate places each of which comprised the remains of a substantial part of the aircraft or vessel.No. 27, in line 22, leave our subsection (2).
§ Mr. Mates
A few months ago the Bill completed all its stages, without amendment, in this House and had the warm support of all those hon. Members present. It has returned from the other place with what some may think is a formidable list of amendments. They are all Government amendments.
Amendment No. 1 was itself amended in the other place. Lord Grimond proposed the removal of a subsection which restricted the Secretary of State's powers relating to the designation of controlled sites. He felt that Secretaries of State could be trusted not to go completely round the bend, and it appears that the Government had some sympathy with that view. It was agreed that, in the interests of brevity, that subsection could be omitted.
I welcome these amendments, and I shall leave it to my hon. Friend the Minister to say a brief word about the Government amendments. Their Lordships accepted the amendments, after consultation, without reservation, and I hope that the House will do the same.
I am grateful to all those in both Houses who have taken an interest in this small but necessary Bill. I should particularly like to thank my noble Friend Lord Sandford for bringing forward this measure in the other place. On Report he paid tribute to the Government for the concern that they had shown for the special problems of those with a legitimate interest in the remains of military aircraft and vessels. I should like to do the same. I am delighted that these problems have been recognised and satisfactorily answered. I can, therefore, warmly commend their Lordships' amendments to the House.
§ Mr. Ian Mikardo (Bow and Poplar)
I begin by congratulating the hon. Member for Hampshire, East (Mr. Mates) and Lord Sandford on the progress that they have made and on bringing the Bill to the House in a condition which they believe to be a considerable improvement as a result of the amendments before us.
The range and complexity of their Lordships' amendments are an indication of what a difficult area of law it is. It is vital that there should be clarity, because 1290 there may be some quite powerful commercial vested interests in military remains. As we know, there is much souvenir and treasure hunting among the remains of vessels, and the same might apply to aircraft. No doubt that was one of the factors that the Government had in mind in seeking to make the legislation as precise as possible.
In general, the House has a duty to ensure that legislation is not ambigious. I say that with a smile, because, after long experience, I know just how difficult it is to achieve that. If someone has to go to court to pursue what he believes to be his rights, and has to find out whether they really are his rights, it must represent a failure on our part. We have then failed to make the legislation so clear that no learned judge needs to put his mind to interpreting it.
As I am anxious that we should get the legislation right, as the Bill is important and, as the hon. Member for Hampshire, East has said, valuable — we will all be happy when, in a short time from now, it completes its progress through Parliament—I want to ask either the Minister or the hon. Gentleman some questions about the amendments.
Lords amendment No. 1 seeks to omit the word "vessel" from subsection (1). It has the effect of confining the application of that subsection to an aircraft. What puzzles me is that subsection (2)(b) of the amendment applies toan aircraft to which this Act applies or a vessel which has so sunk or been stranded".I am sure that there is a good explanation. Although I am not the most astute reader of legal language, I am not the dimmest either. If the legislation is not clear to me, it will not be clear to many of our citizens, and so may cause a lot of trouble.
Is there not an inconsistency between subsections (1) and (2)? Subsection (2) gives powers to the Secretary of State to make an order within the area covered by that subsection, but subsection (1) says that the area covered involves only aircraft, not vessels. Thus, subsection (2) says that the Secretary of State can make an order about a vessel which is now, as a result of subsection (1), outside the ambit of this part of the Bill.
I am sorry if what I am saying sounds complicated and jargonish, but the whole Bill is like that. Moreover, why is subsection (4)(a) confined to a "crash, sinking or stranding" that occurred less than 200 years ago? That seems to be an arbitrary cut-off point and I wonder why it was chosen. There were crashes, sinkings and strandings more than 200 years ago. For example, if the Bill had been enacted a couple of years ago, the Mary Rose might not have been protected. What would the justification have been? There may be other Mary Roses. Bits of Spanish galleons that sailed in the armada are still littered round St. George's channel and round the coast of south-west Wales. Does that mean that they are not protected? If so, why?
I have read amendment No. 2 four times side by side with the original text. I cannot for the life of me see what change has been made or what the purport of it is. I cannot understand its effect. It would be helpful to the House and to the people who will be affected by the legislation if the Under-Secretary of State would tell us what has been changed.
Under clause 2(3), in certain circumstances 1291An excavation or diving or salvage operation prohibited by this subsection—(a) if it is carried out"—onany remains of an aircraft or vessel which are comprised in a placewhich is wholly or partly a controlled site. I have, to some extent, translated the text. Amendment No. 8, in page 3, line 42, is to leave out "is, or". Under the original text, the provision applies to remains in an area that is wholly or partly controlled, but, under the amendment, it applies only to remains in an area that is partly controlled. That puzzles me no end. If the site is controlled, what does it matter whether it is wholly or partly controlled? Surely we want the provision to apply equally in both cases.
In respect of amendment No. 111 shall repeat the point that I put on amendment No. 2. I do not believe that the proposed wording as a different import from the original wording. It is only a little longer and more involved. The House should be given an explanation.
Finally—we do not want to spend more time than is necessary on this—I shall refer to amendment No. 26. Proposed subsection 9(1B) lays down the criteria against which it is decided whetheran aircraft or vessel shall be regarded as having been in military serviceat a particular time. That definition is necessary because many of the Bill's provisions hinge on whether an aircraft or vessel was in military service at a particular time. This is puzzling. Under proposed paragraph (a) an aircraft or vessel is defined as being in military service if it is in service withthe armed forces of the United Kingdom or any other country".That is simple and obvious. Under proposed paragraph (b) an aircraft that is not in service with any of the armed services but is in transit on the way to being put into service with the armed forces of this or any other country shall be deemed to be in military service. That, too, seems to be sensible. Why does that provision not apply equally to a vessel? It applies only to an aircraft. The first three lines of the proposed new subsection (1A) refer to "an aircraft or vessel". Why, then, does it not cover proposed paragraph (b)? For example, if an aircraft which had been on its way to service in the Falklands campaign had, unhappily, crashed, its remains would be covered by the Bill. If a ship on its way to service in the Falklands had, unhappily, sunk, its remains would not be covered by the Bill. What is the difference in principle? If the principle that an instrument of war in tranist to a place where it will be used in military operations is deemed to be in military service, why does it not apply to all instruments of war—ships as well as aircraft?
I understand from the hon. Member for Hampshire, East that the Government are responsible for the amendments. I shall not, therefore, burden the hon. Gentleman with the task of replying to my detailed questions. I shall be grateful to the Under-Secretary of State if he will give some guidance in these matters. Indeed, it is necessary that he should do so.
§ Mr. Denzil Davies (Llanelli)
My hon. Friend the Member for Bow and Poplar (Mr. Mikardo) has, as usual, with his sharp eye for these matters picked out a number 1292 of difficult parts in the Bill. I mean no disrespect to the hon. Member for Hampshire, East (Mr. Mates), but the Bill seems to be a Government Bill.
§ Mr. Davies
I would not call it a hybrid Bill because it is not "hybrid" in the parliamentary sense. The Bill is somewhere between a private Member's Bill and a Government Bill. However, that is not an important point.
In the main, we welcome the Bill. We understand the sensitivity of these matters and the difficulty involved, as my hon. Friend the Member for Bow and Poplar has shown, in drafting once one gets down to trying to provide in legislative form the type of protection that we all wish to see.
I think it is fair to say that the Bill went through its earlier stages quickly. I am not blaming anyone for that. I do not know why it happened. There was concern in some circles about the Bill in its original form. There is always a conflict between the desire and necessity to protect military remains of this kind and the commercial interests involved in legitimate work. I would not pretend to be an expert on the Bill, but it seems to me, having looked at it quickly late last night, that to some extent these conflicts have been resolved.
My concern in respect of the amendments is with jurisdiction. This perhaps goes to the heart of the Bill. This concern was expressed by various organisations, although I do not argue their case. Amendment No. 1 which is an amendment to clause 1, states in subsection (2)(b) that the Secretary of State may make a statutory instrument designating an area as a controlled site(whether in the United Kingdom, in United Kingdom waters or in international waters)Reading that without looking at the background I thought what a powerful Secretary of State we have who can designate anything he likes in international waters. That seems to be a contradiction because, by definition, we have no power to designate anything in international waters. However, no doubt Acts of Parliament can do almost anything. As Professor Jennings has told us they can deem a man to be a woman or a woman to be a man. Therefore, I suppose it is possible to deem that international waters shall be covered by the Bill.
The amendment is in respect of clause 1, but, as I understand it, we then have to refer to clause 3 because if an area in international waters is designated as a controlled site, and presumably we are talking about an aircraft or a ship, the Secretary of State has to do something in respect of that. Presumably the intention of the Bill is to protect that piece of hardware in international waters whether it is a ship or an aircraft. However, the writ of the Secretary of State does not run to international waters, it runs only to Britain. And that is where we have a problem. Clause 3 "Extraterritorial jurisdiction" seems to be the heart of the Bill. Clause 3 talks about offences where there is a contravention of subsection (2). It saysa person shall be guilty of an offence".That is a serious matter. Parliament is not just legislating about protection, but laying down criminal offences. No doubt people could go to prison or be heavily fined. I have not seen what the actual penalties might be, but that does not matter. The penalties applyif the acts or omissions which constitute the offence are committed in the United Kingdom, in United Kingdom waters".1293 The writ of the Secretary of State does run to the United Kingdom and to United Kingdom waters. It goes on:or on board a British-controlled ship".Therefore, the wide intention of the first part is confined because the Secretary of State does not have any powers in international waters.
§ Mr. Mikardo
Can my hon. Friend tell us—I am not too clear about this—whether the provision of the Bill would be in conflict with the law of the sea treaty?
§ Mr. Davies
My hon. Friend asks an interesting and difficult question. Of course, we know that there has been a treaty, but I do not think that the Government ratified that treaty. I think that, rather shamefully, the United Kingdom Government followed the United States and refused to ratify the new law of the sea treaty, which took about 10 years of intense work to negotiate. Whether this is in conflict with the general body of the law of the sea I would not know. I suppose, again, we can do whatever we want to do in an Act of Parliament.
The jurisdiction for the offence is confined under clause 3(1)(a) to acts committed in United Kingdom waters. However, that is not the point I am making. We now have to look at international waters. We are talking about whether the offences are committed on board a "British-controlled ship", which is presumably defined somewhere, in international waters. Therefore, any British-controlled ship in international waters which transgresses or contravenes the provisions of the Bill is subject to a fine.
Clause 3(1)(b) states:in a case where those acts or omissions are committed in international waters but not on hoard a British-controlled ship".The offence is then confined even more because the person who commits it has to bea British citizen, a British Dependent Territories citizen or a British Overseas citizen".The law of nationality was never my strong point and I would not wish to try to go down that road. These may be precedents for establishing offences that British dependent territories citizens or British overseas citizens can be convicted for and a law passed in the House. There are new citizenship rights, if they can be called rights. It seems to me that they are derogations of rights.
§ Mr. Davies
Yes, they are five years old, but I merely, ask whether there is a precedent for making those people guilty when they are not here. Perhaps our legislation does cover people who are British overseas citizens.
§ Mr. Mikardo
Is there not also another point? Would it not be possible for a British citizen to contravene the provisions of the Bill by employing a Frenchman or American to do what it would be illegal for him to do himself?
§ Mr. Davies
That is a good point. The Bill says only if the offence is committedon board a British-controlled ship".The person committing the offence may be too clever to do it from a British-controlled ship so it may be on a French-controlled ship. It also says that the act must be committed by a "British citizen". Maybe the British citizen could be said to be an acccessory before the fact. I do not know whether one can be an acessory to an offence which is not an offence, if that is not a roundabout way of saying it. I shall come back to that point later.
1294 That is taken a little further by amendment No. 2. My hon. Friend the Member for Bow and Poplar referred to that. I find it slightly difficult. Amendment No. 2 states:but no place in international waters shall be a protected place by virtue of its comprising remains of an aircraft or vessel which has crashed, sunk or been stranded while in service with, or while being used for the purposes of, any of the armed forces of a country or territory outside the United Kingdom.Obviously, we are not protecting other countries' ships or aircraft.
What protection is there? It seems that British companies—I use the phrase generally because there are closer definitions—will be confined or prevented from carrying out these acts on British aircraft or ships or aircraft or ships that have been in the military service of the United Kingdom in international waters. I am not saying that that is wrong because we agree with the Bill. However, it seems that foreign companies are not so confined. I wonder whether that was the intention of the Bill. It is probably the effect of the Bill because I do not know how that can be stopped. My hon. Friend the Member for Bow and Poplar mentioned the law of the sea treaty. He is absolutely right. The only way in which these things can be dealt with adequately is by international convention or treaty, through the numerous law of the sea agreements that have come down over the years. It is not the case of arguing for commercial interests. It seems strange, however, that British companies will be prevented, apparently, from making money out of these remains while other companies—French, American or Japanese, for example—can go ahead and disturb the remains. Is that the intention of the Bill? Are the Government concerned about that? Are the Government trying to do something in collaboration with other countries so that the Bill does not remain British in its scope, limited, and ineffective to some extent in its jurisdiction? What are the Government's views on these matters?
It seems that the central problem has not been resolved. We have been told that certain assurance have been given. I have read the report of Lord Sandford's speech in another place and he seemed confident that assurancess were coming from left, right and centre. It seems that people did not get as far as reading Lord Trethgarne's reply in full. The assurances which have been given seem not to cover the possible activities of non-British companies and perhaps they cannot. I shall not continue to advance the argument as it is fairly straightforward and clear. I shall be grateful if the Minister addresses himself to it.
§ Mr. Alfred Dubs (Battersea)
I welcome the Bill, but wish to make a few brief observations and to ask some questions. One of my most poignant childhood memories is when, during the war, an RAF Lancaster crashed on a hillside near to where I was. I remember the agony and concern over the aircrew who were unfortunately killed and who had to be removed from the wrecked aircraft. I remember the Lancaster being guarded by troops.
I fear that there is a flaw in the nationality provisions as set out in the Bill. There is an omission which I accept did not apply when the Bill started its passage through Parliament. However, since the recent Order in Council on Hong Kong, one might have expected the point to be covered. I refer to the concept of British nationals overseas, who are not included, as I understand it, in clause 3. As recently as yesterday evening the Outer Space 1295 Bill was before the House, a measure which contains similar provisions covering citizenship and nationality. There is a reference in the Outer Space Bill to British nationals overseas. I refer to clause 2(2)(a).
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. Perhaps I am not following the hon. Member for Battersea (Mr. Dubs) with sufficient care, but I would be grateful if he would tell me to which of the Lord's amendments he is referring.
§ Mr. Dubs
I fear that you have caught me out, Mr. Deputy Speaker, in trespassing on your tolerance. There is no Lord's amendment to the issue that I am raising. I have taken it up because my right hon. Friend the Member for Llanelli (Mr. Davies) mentioned it. The omission of British nationals overseas is a minor matter but a real one.
I move on swiftly, Mr. Deputy Speaker, to the amendments. I shall refer particularly to Lords amendment No. 1, and develop briefly the remarks of my hon. Friend the Member for Bow and Poplar (Mr. Mikardo) on time limits. As I understand it, the concept of the 200-year period applied, although in a different form, in the original version of the Bill as it appeared in another place. The reference to 4 August, 1914 has been added and it is that which causes me to be puzzled. I am puzzled also about the 200-year period. We are all aware of the tragic war that began on 4 August 1914, but it is not clear to me why that date, and that date alone, should enable some of the Bill's provisions to be brought into being. I have studied the amendments and I cannot understand the thinking behind that date and the 200-year period. For example clause 1(3)(a) states:unless it appears to the him" — that is the Secretary of State— "that the vessel sank or was stranded on or after 4th August 1914".The House will be aware that there are vessels such as the Mary Rose, and there may be many in that category. It is difficult to understand why the date 4 August 1914 has been selected. It seems that no such time limit should have been necessary, given the spirit of the Bill, and that respect for the remains of people should apply to dates before 1914.
I am concerned also about the change in the definition of military service. The original version of the Bill referred, in clause (1)(1)(b) towhile in the service of the Ministry of Defence of or any other authority which at the time exercised functions in relation to anyof the naval, military, or air forces of Her Majesty".That passage has been dropped, and we now have the expression "while in military service". By changing the terminology are we not excluding certain aircraft or vessels which would otherwise have been covered by the Bill? I would think that the definition "military service" is more limited thanwhile in the service of the Ministry of Defence or of any other authority".I have no doubt that the Minister will advance the argument that if a civilian aircraft were to be used to take soldiers from one part of the United Kingdom to another, it would be covered by the term "while in military service", but I wonder whether "Ministry of Defence" does not go wider than "military service". Perhaps the Minister will elaborate on that.
1296 Thirdly, there is the phrasearmed forces … outside the United Kingdom",which appears in Lords amendment (1)(4)(c). That is a reference to thearmed forces of a country or territory outside the United Kingdom".I am not sure about the intention behind that. Will there be definitional difficulties in referring to other armed forces? I understand that if an aircraft carrying American soldiers who were based in the United Kingdom were to crash, the intention would be for the Bill to cover such an event. Perhaps the reference to other armed forces goes wider than that. If that is the intention, it would be helpful for the Minister to provide clarification.
I apologised earlier, Mr. Deputy Speaker, for referring to something which was not covered directly by the amendments. I took up the matter because I was genuinely puzzled and because there will be no further opportunity to question the Government on these matters after the consideration of the Lords amendments has been completed. I apologise, Mr. Deputy Speaker, for having gone beyond the bounds of the amendments.
§ Mr. Chris Smith (Islington, South and Finsbury)
I do not wish to detain the House for long as I wish the Bill to take its proper place on the statute book within a reasonably short period. However, there is. one matter which concerns me about Lords amendment No. 1, which relates to the extent of the controlled site designated by the Secretary of State. We have before us two alternatives, one of which is contained in the Bill. Clause 1(4) says that the Secretary of Statemay by order made by statutory instrument designate as a controlled site so much of that area as he considers it appropriate so to designate for the purpose of protecting or preserving any remains comprised in that place.That wording seems to be clear and unambiguous, and seems to cover all possible parts of territories which the Secretary of State might wish, for the purposes of the Bill, to designate as a controlled site. However, the other place has somewhat expanded on that definition, and by subsection (5) of amendment No. 1 appears to wish to substitute for that wording a rather more complicated wording which, on my initial reading, does not add very much to the possibilities open to the Secretary of State. It also includes the strange phrase:or on account of the difficulty of identifying that place".My concern can perhaps be exemplified by one particular crashed aircraft of which I know. As some hon. Members may know, I spend considerable amounts of the little free time that I have walking the hills and mountains of Scotland, and an extremely pleasant and healthy exercise it is. There is one particularly beautiful part of Scotland, in Torridon, where a mountain called Beinn Eighe has, at the back of it a coire called Coire Mhic Fhearchair, one of the most spectacular spots in the mountains. It is contained on three sides by mountains with a lochan at the foot of it and at the back three triple buttresses of about 1,000 ft., in height, which provide an extremely popular rock climbing ground.
Back in the 1950s, sadly, an RAF aircraft flew, by mistake, into the coire and before it was able to rise sufficiently to clear the summit of the mountain it crashed near the top of the triple buttresses. The wreckage spread — tragically, because everyone involved was killed — right the way down the cliff face and into the floor of the 1297 coire. In the context of the Bill, the problem is that the wreckage is spread over a considerable area. My concern is over the definition of the controlled area.
§ Mr. Smith
I think that most of the bodies were recovered, hut I am not certain whether the hon. Gentleman is correct. Even if he were, my point would none the less apply on a general basis, because there are other similar examples.
The terms of the Bill are very stringent. No one can move or tamper with any of the parts of a crashed aircraft or wrecked ship. That might place restrictions on people, for example, walking in the mountains. I am concerned that the controlled area should be no greater than what would be required to effect the purposes of the Bill.
The wording of the Lords amendment seems to offer rather greater scope than the wording of the Bill and might lead to unnecessarily large areas being designated as a controlled site and to particular restrictions being put on that which not necessarily be needed to pursue and promuwitylgate the purposes of the Bill. They might then be to the detriment of some of our citizens. I shall be glad to hear from the Minister some of the thinking that might be leading the Government to accept the new wording rather than the wording of the Bill.
§ Mr. John Prescott (Kingston upon Hull), East)
The proceedings surrounding the Bill have been deplorable. I know that it is the practice for Departments to seek the assistance of hon. Members to promote private Bills, and that practice has been followed by both sides of the House. I am not complaining, because the process can be of advantage to the House. However, I have been watching the progress of the Bill with care for some time. I am one of the few hon. Members who dive on wrecks, and I have some knowledge of the problems that are likely to be brought about by the Bill.
The Bill started with some controversial principles. Some are embodied in the amendment — for example, how we extend British jurisdiction into international waters. I notice that this provision will apply only to British ships and British personnel on British vessels in international waters. However, I am told by international authorities that it is extremely difficult to define this problem, and that it discriminates between British and foreign companies involved in salvage operations. Perhaps we shall hear from the Minister about this.
The other place made considerable changes, and has made the Bill better, but it has transformed a private Bill into a Government Bill, because all the amendments are Government amendments. The substance of the change, particularly that made by amendment No. 1, is considerable. I intervene now, but I hope to catch your eye at a later stage, Mr. Deputy Speaker, after the Minister has spoken. We are asking questions when it might be better for us to hear first what the Minister has to say on the changes that have been made.
The Bill came from the other place only two or three days ago, and I have been watching for it to appear on the Order Paper. Unfortunately, as this is a private Bill, it does not come in our normal notice of business. Therefore, I did not appreciate that it was on the Order paper this morning, 1298 due to something that happened last night. Therefore, we are expected to consider many amendments, involving important principles, at short notice.
Amendment No. 1 says that a statutory instrument will be laid before the House. That is an improvement. The original provisions of the Bill, which was rushed through its stages here, meant that the Department had total powers of designation for just about any vessel or aircraft. At least the statutory instrument, which seems to be a major change, now applies to aircraft. The Government must bring forward a statutory instrument designating a particular aircraft or vessel. If that is the case, it is to be welcomed. I hope that the Minister will confirm that when he gives the Government's view.
What will be the process of designation of a controlled site? Will it be by statutory instrument? The rather global approach that the Department adopted before meant that any area could he so designated, provided it fitted in with the date restriction of after 1914 and the 200-year qualification. Every hon. Member would want to do everything possible to protect the burial remains of military vessels. Nobody wants to interfere with that important priciple. However, anybody who dives knows that one finds a ship not in its complete state, but in bits and pieces buried below or resting on top of the sea bed. Not often does one find a whole vessel. I recall diving on the Mary Rose in the early 1970s. I had to put my hands through the mud to find the timber.
The Bill, as originally drafted, meant that even to move or tamper with any vessel became an offence. Unless one had done a great deal of research, one would not k now whether a vessel was used for military or commercial purposes. The situation is quite different from the vessels that were sunk in Scapa Flow. Ironically enough, though, under the Bill one would still be able to dive and do salvage work on the Scapa Flow vessels, because I understand that everybody escaped from them and no bodies are associated with them. Therefore, a certain amount of flexibility is associated with salvage operations.
When those who are associated with the industry first became aware of the Bill, their first reaction was to oppose it. In reality, the Bill came before the House without the industry having been consulted about it. The Department decided that something must be done. However, it did not consult anybody; it simply produced a Bill and asked the hon. Member for Hampshire, East (Mr. Mates) to introduce it because it was a worthy cause. I understand why he would want to co-operate with that particular cause. Therefore, he must have been surprised by the vehemence of the reaction to the Bill. The number of amendments that this House has been asked by the other place to consider — amendments on very important issues — should make us very cagey about listening to Government Departments that want Bills containing perhaps only a few sentences to be introduced by Back-Bench Members.
The reason for the introduction of the Bill was to allow the Department to deal with the problems created by people who want to dive on vessels and carry out salvage work. A case in my constituency is particularly relevant to this amendment. Shell were found on a vessel. As a commercial operation, people wanted to dive on this vessel, which was sunk in 1914. There has been one heck 1299 of a hassle with the Department as to whether, these shells having been found, they can be used to commercial advantage.
The Bill would prevent that kind of hassle. I had to intervene on behalf of certain of my constituents who had found these empty shell cases and wanted to use them, because they had found a profitable market for them. The Government took the shells into safe keeping, but somebody burgled them, using 4-tonne lorries. Nobody has been able to find out where the shells went, after having been in the safe custody of the Government. After all the fuss that I had with the Department, the purpose of the Bill was to try to solve all those problems and to designate any area that it was thought should not be dived on or tampered with.
Many major matters are covered by the Bill, but it is an unsatisfactory way of dealing with them. In the other place the industry battled intensively against the Bill. As a result, we are considering these amendments. I hope that the Minister will be able to give us a clear indication of the Government's attitude towards them. If the Minister would do that, we could consider his reply and make points upon it later in the debate.
§ The Parliamentary Under-Secretary of State for the Armed Forces (Mr. Roger Freeman)
I am grateful for the Opposition's contributions and I shall deal with the points that have been made. First, however, I ought to underline the fact that the purpose of the Bill is to protect military remains—that is, aircraft which have crashed or vessels which have been sunk with human remains on board. The purpose of the Bill is to treat them as war graves. This is a serious and important subject. I congratulate my hon. Friend the Member for Hampshire, East (Mr. Mates) on introducing the Bill, looking after its passage through the House of Commons and speaking to it this morning. It is an important and serious Bill and I shall seek to answer all the Oppositions contributions, which I think I have interpreted correctly as points of detail rather than as objections to the Bill.
I intend to comment briefly on the Lords amendments and with your permission, Mr. Deputy Speaker, I shall deal briefly with the other Lords amendments that are grouped for debate later, because, already, the debate has ranged widely. All but one of the 28 amendments were put forward by the Government. No fewer than 22 of the 28 amendments relate to a change to the designation of a regime for vessels, as opposed to designating vessels as a class—those that were in military service but were sunk and that are believed to contain human remains. A major change in the procedure was introduced in the other place, and the Government accepted it as a sensible response to some of the points that have been referred to this morning by hon. Members. Military vessels will no longer be protected as a class. They will need to be individually designated by an order made by statutory instrument. The reason for this is simply because of the difficulty of defining a class of military vessels. The hon. Member for Kingston upon Hull, East (Mr. Prescott), referring to diving interests, in particular sub-aqua interests, put his finger on the problem: that if one is interested in diving to observe but not to interfere with a vessel, how does a diver 1300 or the Ministry of Defence know for certain whether a particular vessel was being used for military or civilian purposes?
In wartime, many merchant vessels are commandeered and used for military purposes. Therefore, the dividing line between the civilian and military use of vessels is not so clear as it is in the case of aircraft. It is much easier and simpler to identify a crashed aircraft as having been fulfilling a military purpose and role as opposed to a civilian role.
Vessels can now be so designated, even where their exact location is not known. I shall deal later with that point when answering the question that has been raised in relation to controlled sites. The change was made to reduce the uncertainties for divers about whether particular vessels were covered by the Bill, which I am sure both sides of the House hope will soon become an Act.
Amendment No. 5 redefines the offence involved in the protection of military vessels and aircraft. The prosecution now has to show tht the person believed or had grounds for suspecting that the vessel was in military service. The effect of amendment No. 5 is slightly to change the onus of proof and it is an intelligent and sensible response to the representations. It is designed to draw a clearer distinction between the intention to commit an offence and an offence that might be committed unwittingly and without particular intent or purpose.
Amendment No. 6 removes the offence of boarding and defines that of entering. The purpose of the amendment is to introduce an offence that is not so strong as boarding. This amendment was introduced partly in response to representations from diving interests. The act of entering and interfering with parts of a vessel is covered now by the Bill, as a result of amendment No. 6.
Amendment No. 14 provides that no offence will be committed by those exercising statutory powers. I am sure that that amendment will commend itself to the House. Amendment No. 20 relates to the powers of boarding by authorised officers and makes it clear that the Secretary of State and authorised officers can authorise persons not only individually but also by description—for example, naval officers. Amendment No. 28 enables the provisions to be extended to the Channel Islands by Order in Council.
I am grateful for the tribute that was paid by Lord Sandford in another place to the Government's efforts to protect the interests of British salvage companies and others who may be affected by the Bill. We have agreed to issue licences to reputable British salvage companies to enable them to salvage protected vessels in international waters, provided that they adhere to a code of practice designed to minimise disturbance to any human remains.
§ Mr. Prescott
On a point of order, Mr. Deputy Speaker. Are all the amendments being moved in one block?
§ Mr. Deputy Speaker
Order. We are following the amendments listed on Mr. Speaker's provisional selection list. The Minister made a passing reference to an amendment that is not in the group that we are discussing, but as I thought that it might be helpful to the House I did not comment. The other amendments will be dealt with as we reach them in the proper order.
§ Mr. Prescott
I am grateful for your advice, Mr. Deputy Speaker.
The Minister referred to reputable salvage operators. How will he judge what is reputable? Quite frankly, many 1301 of them are little more than pirates. What criteria will the Minister use? Will they be non-members of certain associations or bodies?
§ Mr. Freeman
If the hon. Gentleman will bear with me, 1 shall deal with that matter later. I confirm that I am addressing the first group of amendments, but I thought that it might help the House if I touched briefly upon the purpose of other amendments.
On Second Reading, the hon. Member for Greenock and Port Glasgow (Dr. Godman) expressed concern that the interests of fishermen should be safeguarded. My hon. Friend the Parliamentary Under-Secretary of State for Defence Procurement wrote to him saying that we would issue a general licence for fishermen that would protect them from prosecution under the Bill if they exercised reasonable care. Preliminary discussions have been held with fishing organisations on the content of the licence, and we believe that they are satisfied.
The hon. Member for Orkney and Shetland (Mr. Wallace) expressed concern about sports divers. Indeed, other hon. Members have received letters from their constituents on that matter. The Government's amendments have been welcomed by sub-aqua associations, and I hope that they are now reassured that the Bill will not restrict the activities of divers who respect the sanctity of war graves.
The Government have been heartened by the expressed view of all concerned that, despite the problems, the Bill is worthy. I hope that, in due course, the House will approve the Lords amendments, all of which the Government fully support.
The hon. Member for Bow and Poplar (Mr. Mikardo), in welcoming the clarity that the Lords amendments bring to the Bill, raised a number of points. His first related to what he believed to be inconsistencies in amendment No. 1. The hon. Member for Battersea (Mr. Dubs) also make that point. He courteously informed me that he would have to leave the debate, but I understand that he is returning later.
Amendment No. 1 is the key amendment and its purpose is to change the policy from designating a class of vessels to designating specific vessels. The Bill still retains a provision to designate classes of military aircraft. this group of amendments enshrine our change of policy from blanket protection to a procedure that involves a great deal more work. However, I hope that that means a great deal more clarity, especially for such interests as divers. Vessels will be designated by statutory instrument, and I will explain the procedure later.
The hon. Member for Bow and Poplar also asked about the 200-year provision, which is not covered by the Lords amendments. He specifically asked about the Mary Rose, as did the hon. Member for Kingston upon Hull, East. Certainly the Mary Rose foundered and sank more than 200 years ago, but she was protected by the Protection of Wrecks Act 1973, which protects vessels of historic or archaeological interest. Therefore, there is sufficent protection for any vessel that sank prior to 1914. The Bill deals with those involved in the great war, the second world war and subsequent conflicts where the classifications historic or archaeological would not be appropriate.
§ Mr. Prescott
Why include a date of 1914—why not leave it open and bring in a statutory instrument, as the Minister explained, to deal with specific military vessels? The state of the ship is not really relevant.
§ Mr. Freeman
We are seeking to respond to the reasonable request of the diving fraternity and others who want clarity of purpose. The designation procedure will involve considerable effort. For the sake of clarity, good order and procedure, we intend to start from August 1914 and work to the present day. We are satisfied that existing legislation is sufficient to deal with vessels that sank earlier than that—even if there are human remains—because they would be regarded as of historical or archaeological interest.
The hon. Member for Bow and Poplar asked me the purpose of a number of amendments. Amendment No. 2 simply relocates, with minor drafting changes, clause 1(2). That technical change is required if dealing with the amendments as a whole. Amendment No. 8 removes provisions rendered unnecessary by amendment No. 1, which changes policy from a class to a designation regime.
Amendment No. 11 puts beyond all possible doubt that where it is claimed that an act was done in accordance with a licence, the onus is on the defence to prove that it was. Amendment No. 26 inserts a definition of military service that is already used elsewhere in the Bill.
The hon. Gentleman asked why vessels being delivered to the Royal Navy were not covered by the Bill. We are not aware of any such vessel that was sunk or severely damaged during military conflict, so there was no reason to include them in the Bill.
The right hon. Member for Llanelli (Mr. Davies) generally welcomed the Bill, but he posed a number of questions to which he wants satisfactory answers. The kernel of the hon. Gentleman's points concerned jurisdiction. He asked why we are considering designating particular vessels or controlled sites in international waters, if we have no jurisdiction over foreign companies or individuals. He asked whether we were not disadvantaging our nationals and British salvage companies. That is a perfectly fair point, but before I respond to it, I confirm that there are specific procedures regarding vessels. The intention is to designate a few controlled sites. They could be mainly or, even exclusively, in territorial waters, and would be specifically designated by geographical co-ordinates. Within them no diving would be permitted. That would be where there was an important national war grave. Designated vessels could be either in territorial waters or international waters.
We are responding to representations made by salvage companies which are worried that if we prevent them from entering into controlled, sensible, salvage operations in international waters, they will be disadvantaged by companies from other countries. We have responded that we shall permit them to carry out controlled salvage on most designated vessels by issuing a licence to reputable companies. I shall deal with the definition of reputable in a moment. However, there will be a few vessels where we would not like any salvage to occur and they will form a restricted class. I hope that that assurance will be satisfactory to the salvage interests.
We shall not seek to restrict a designated vessel some time after the designation of that vessel. In other words, when we designate the vessels by statutory instrument we shall not subsequently, after the salvage company has put 1303 great effort, trouble and money into preparing the salvage operations, tell that company that the vessel falls within the exclusion subcategory of designated vessels. I hope that that assurance will satisfy the hon. Gentleman. I think that it has satisfied salvage operators thus far.
§ Mr. Prescott
In the case of the Edinburgh the Government had a great of interest in salvaging the gold and presumably, as seamen were on it, it could be designated as a burial site. Under these regulations, would the Government designate it as a war grave, which presumably would be legitimate, and then allow a salvage operator to salvage the gold so that they could get their greedy hands on it, getting over the principles of interfering with a burial site?
§ Mr. Freeman
That raises a specific question and I hope that the hon. Gentleman will allow me to answer it in writing in due course. It depends on whether we would intend, under the provisions of the Bill, specifically to designate a particular vessel. He is asking questions about a specific controlled site or vessel, and I hope he will permit me to answer subsequently.
§ Mr. Mates
Ministers cannot give specific answers, but I remember the case, as I followed it closely. Edinburgh was a designated war grave. There were remains of the crew on board and before the Government gave permission for the salvage operation to take place, the most detailed stringent arrangements were made about not disturbing those remains. A long period of negotiations between the salvage company and the Government took place before permission was granted. I have no doubt that if the same position arises any future Government will take the same care to ensure that the remains are not disturbed.
§ Mr. Freeman
Perhaps the hon. Gentleman will let me make a little progress and then I shall be happy to give way again.
§ Mr. Prescott
I understand that the Minister may not know all the details of the case. That is normal and I make no criticism of it. But we are dealing with a fundamental point. The Government may designate sites in this legislation, whether or not it is a private Member's Bill, and that then becomes law. The Government will have to decide which areas they wish to designate as burial sites, for which a statutory instrument may be tabled and discussed in the House. Therefore, the Government's view is relevant. Are we to assume from the evidence that it is possible that the Government will judge that an area deemed a burial site, for example the Edinburgh, would be allowed for salvage operations so long as it is done carefully, the bodies are not disturbed and the gold is salvaged? Is it possible that a deemed burial site can still be a site for salvage operations?
§ Mr. Freeman
The intention is to permit reasonable, sensible, salvage operations and to issue licences to specific named salvage companies to salvage on—
§ Mr. Freeman
If the hon. Gentleman will allow me to complete my sentence, he will have an answer. We shall judge salvage companies to be reputable according to their past performance, experience, ability and behaviour to 1304 carry out salvage. The intention would be to permit as broad an activity of salvage as possible. I can assure the hon. Gentleman that the intention is not necessarily to restrict legitimate salvage operations.
§ Mr. Denzil Davies
As I understand it, the Government are saying that it is a crime to carry out salvage operations in territorial waters, but that they will license some people to carry out a crime in international waters. That is the point about jurisdiction. Although it is a crime, if one is reputable and goes along with the Ministry of Defence, one can be licensed to commit a crime. That is an extraordinary attitude.
§ Mr. Freeman
The representations of the salvage companies were that in international waters we have no power to prevent a foreign company from carrying out salvage operations on a sunken vessel, and that if they do not carry out the work some other company will. Our response has been to draw a balance. We have said that we will issue licences to reputable salvage companies so that they are not put at a disadvantage. I appeal this morning to foreign companies and citizens to respect the purpose and intent of the Bill, which we hope will shortly become an Act. Although our jurisdiction does not cover them, we hope that they will respect the legislation.
§ Mr. Denzil Davies
The Government are making a certain act in international waters a crime but the crime will apply only to British citizens, residents, ships and so on. The problem is that foreigners can do those acts and cannot be stopped. Are there any moves towards an international agreement because, obviously, that is the real solution? Now the Government are telling us that there is a genuine problem caused by the drafting of the legislation, and to get round it they will give some people, no doubt nice people whom they like, a licence to commit what would be a crime if somebody else did it. Perhaps there are other precedents in legislation for that.
§ Mr. Davies
It is certainly not to be encouraged that the Minister of Defence or any other Ministry, with no disrespect to them, can decide who commits a crime and who does not.
§ 11 am
§ Mr. Freeman
Obviously, this Parliament can legislate only for its own citizens, but I hope that foreign companies and citizens will respect the intents and purposes of the legislation.
The hon. Member for Islington, South and Finsbury (Mr. Smith) asked about controlled sites, which are dealt with in clause 1. The provision will cover all vessels within a specific prescibed area of the sea. All diving within that controlled site will be prohibited. It will be an offence to dive in that controlled site, but the intention is to designate by statutory instrument only a few such sites.
I hope that I have satisfied the hon. Gentleman that named vessles will be disignated. It will be an offence to enter—board is too strong a word—to damage, remove or disturb the contents of a maritime war grave.
The hon. Member for Kingston upon Hull, East made two implied criticisms. He welcomed the Bill, but he stressed that it was a private Member's Bill. I congratulate my hon. Friend the Member for Hampshire, East on introducting the Bill. The Government support the Bill strongly and warmly. The hon. Member for Kingston 1305 upon Hull, East is not against the Bill's principles, but he is worried about the speed with which the Bill is being examined. This morning we are considering Lords amendments and the hon. Gentleman will agree that they do not affect the purposes of the Bill.
§ Mr. Prescott
I was complaining about the speed with which the Bill is being considered. It went through all its stages in one go. It has set some precedents in the speed with which it has been rushed through the House. Today's debate is revealing the difficulties involved in considering the Bill in this way. Once the Minister sits down we cannot intervene to question some of the essential points that he is making in his reply. That is not satisfactory, but we have to operate under the rules of the House.
I have already asked the Minister about international jurisdiction. I am sponsored by the National Union of Seamen, the members of which are concerned. When a vessel in international waters is designated, a British salvage company can operate with protection under the law because it will have a licence. That applies to British companies and British seamen. However, salvage is an international industry.
Some members of the NUS sail on ships flying foreign flags. British divers might have to work from a ship flying a Greek flag. They will be commiting an offence under the legislation because they are British citizens. They will be affected by the Greek law. What protection does a British seaman have under these circumstances?
§ Mr. Freeman
The hon. Member for Kingston upon Hull, East is thinking on his feet and I am impressed with the speed with which he is doing that. He is asking important questions. The hon. Gentleman will appreciate the dilemma. The Bill's purpose is to protect military vessels with human remains on hoard. We are talking about war graves. Some such vessels sank outside British territorial waters. In a reasonable and constructive way we are seeking to indicate during the passage of the Bill how seriously we take war graves and to provide a limited procedure for the control of British salvage companies when salvaging such vessles.
We intend to issue licences to reputable British companies so that they can operate in competition with foreign companies.
§ Mr. Prescott
The Minister has made some important comments about British citizens. I appreciate his difficulty, but I ask him again, what advice can he give to British seamen on a ship ruled by the law of another country because it bears the flag of that country? What happens if the British seaman disobeys the law of that country? Does he face prosecution under British law or Greek law? What advice can the Minister give to members of the NUS in that dilemma?
§ Mr. Freeman
I understand the hon. Gentleman's anxiety. His question is more than hypothetical. The hon. Gentleman accepts the principles behind the Bill. I hope that the dilemma that he describes will not occur. I am sure that the hon. Gentleman's union will be able to give its members guidance.
The hon. Member for Kingston upon Hull, East also asked me how a controlled site will be designated. This will be by statutory instrument in which the House will he involved. That provision is contained in clause 1(2).
The hon. Gentleman also asked about Scapa Flow. I assume that he has in mind the tourist attraction which 1306 that has become. We are talking about German ships which were scuttled, not sunk, with human remains on board. I confirm that those German vessels will not be covered by the legislation so there will be no problem for divers or for the tourist industry.
I commend the amendments to the House.
§ Question put and agreed to.
§ Subsequent Lords amendments agreed to.