Marine archaeology and cultural heritage Legislation giving statutory protection to ancient monuments dates back to 1882. Similarly, the need to preserve the best examples of ancient monuments, archaeological and historic interests in and around UK waters has also long been recognised. Indeed, much of the law governing marine archaeology in the UK has changed little in its basic structure over the last century and a half, although several subsequent national and international measures have afforded wider protection to the marine historic environment. The primary legislation governing the historic environment is largely shared by England and Wales. However, Protection of Historical Assets in Walesi, published by the Welsh Assembly Government (WAG) in September 2003, sets out ideas for possible changes to the legislation governing the protection of the historic environment in Wales. A similar consultation undertaken by the Department for Culture, Media and Sport (DCMS) in England also identified a number of changes that might be made to designation and protection and the ways in which they might be appliedii. A further joint consultation paper on the protection of the marine historic environment followed, which set out for the UK as a whole, the key issues and questions in relation to marine historic environment designationiii. Against this background this briefing summarises the key legislative instruments and addresses the main shortcomings of the existing regulatory framework relevant to the protection of marine archaeology and cultural heritage.

INTERNATIONAL AND EUROPEAN LEGISLATION

The World Heritage Convention, adopted by UNESCO in 1972, links the concepts of nature conservation and preservation of cultural heritage and defines the kind of sites that can be considered for inclusion on the World Heritage List. By signing the Convention, each country pledges to conserve not only the World Heritage Sites situated within its territory, but also to protect its national heritage. The International Convention on Salvage 1989 replaced the earlier Brussels Convention on the law of salvage. Among the key changes introduced was the creation of an enhanced salvage award. This compensates salvors who have failed to earn a reward in the normal way (by salving the ship and cargo) but have, through their efforts, minimised or prevented damage to the environment. The Valetta Convention entered into force on 21 March 2001, and contains provisions for the identification and protection of archaeological heritage, its integrated conservation, the control of excavations, the use of metal detectors, and the prevention of illicit circulation of archaeological objects, as well as for dissemination of information. The Convention defines the archaeological heritage very broadly, beyond the terms of current UK ancient monuments, historic buildings and maritime heritage legislation. It requires signatory States to make provision for the maintenance of an inventory of “archaeological heritage” and for the designation of protected monuments and areas. It also recommends the creation of archaeological reserves. Box 1 Key International and European legislation

The Convention Concerning the Protection of the World Cultural and Natural Heritage – the World Heritage Convention The International Convention on Salvage 1989 The European Convention on the Protection of the Archaeological Heritage (Revised) 1992 – the Valletta Convention Council Directive 93/7/EEC (as amended by 2001/38/EC) on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State Article 87(3)(d) of the Maastricht Treaty authorises Member States to provide aid for economic operators in order to promote culture and heritage conservation UK MARINE HERITAGE LEGISLATION

Salvage law The recovery of property from the sea, irrespective of its antiquity, is governed in the UK by the law of salvageiv. Consequently, while a few amendments to the salvage regime have been introduced to take account of the particular nature of archaeological material, the rights and duties of the participants in the marine archaeological process, and the disposal of

the recovered material continues to be determined by the law of salvage. The International Convention on Salvage 1989 is incorporated into UK law by s.224 of the Merchant Shipping Act 1995. This effected a modernisation of commercial salvage law, but voluntary salvage, where the salvor does not act under a contractual obligation (the normal case in maritime archaeology), retained most of its essential characteristicsv. The Act also has implications for the reporting of recovered archaeological material. Any items, regardless of age, importance or ownership, recovered from UK territorial waters, or is landed in the UK from outside territorial waters, must be reported to the Receiver of Wreck. The UK has reserved its right not to apply the Salvage Convention where marine cultural property is involved, although this right has not yet been exercisedvi. Box 2 Key UK primary legislation

Merchant Shipping Act 1995 (s.224 and s.236) Merchant Shipping and Maritime Security Act 1997 (s.24) Protection of Wrecks Act 1973 Ancient Monuments and Archaeological Areas Act 1979 Protection of Military Remains Act 1986 National Heritage Act 2002 Planning (Listed Buildings and Conservation Areas) Act 1990 (Does not apply below low water mark - LWM) Town and Country Planning Act 1990 (Does not apply below LWM) Transport and Works Act 1992 Water Industry Act 1991 (s.3.2(b)) Electricity Act 1989 (Sch.9, s.38) (Both of the above Acts require operators to have regard for the protection of archaeological heritage)

Designation legislation The principal protection for underwater heritage in the UK’s territorial waters is provided by the Protection of Wrecks Act 1973. The Act was intended as a temporary expedient, but has become the mainstay for protecting underwater cultural heritage. Section 1 of the Act empowers the Secretary of State (SoS) for Culture, Media and Sport and the WAG to designate the site of a vessel of historical, archaeological or artistic importance lying wrecked in or on the seabed as a “restricted area”. There are currently 54 such sites designated under the Actvii. The Act is administered in Wales by Cadw. Additionally, under s.2 of the Act, a “prohibited area” may be designated around the site of a wreck, the contents of which make it a potential danger to life or property. Section 2 of the Act is administered by the Maritime and Coastguard Agency (MCA), through the Receiver of Wreck.

The Merchant Shipping and Maritime Security Act 1997, s.24, empowers the Secretary of State for Transport to make orders implementing international agreements on the protection of wrecks outside UK waters. Orders may designate wrecks or areas where they are situated, may prohibit or restrict access or interference with them, and may provide for licensing and enforcement. Under the Ancient Monuments and Archaeological Areas Act 1979, which consolidates and amends measures dating back to 1882, the WAG (through Cadw) compiles a Schedule of ancient monuments of national importance, categorised into ten principal groupings. In a maritime context, sites on the seabed within territorial waters can be scheduled under the Act if they comprise a building, structure or work, or any vehicle, vessel, aircraft or moveable structure that is of public interest by virtue of its historic, architectural, traditional, artistic or archaeological interest, provided it is not already designated under the Protection of Wrecks Act 1973. The wreck of the Louisa in Cardiff Bay was scheduled under the Act because following construction of the Barrage, the remains were in inland waters and could not be designated under the 1973 Actviii. The primary objective of the Protection of Military Remains Act 1986 is to prevent disturbance of human remains still present in military aircraft and vessels. The Act applies to both UK and international waters, but foreign vessels may only be designated within UK waters. The regulatory framework of the Act works upon the concepts of “Protected Places”, “Controlled Sites” and the prohibition of certain excavations. Divers may visit a Protected Place on a “look but don’t touch” basis, but are prohibited from visiting Controlled Sites. The Act is administered for the UK as a whole by the Ministry of Defence (MoD). Historic significance is one of the criteria under which vessels can be designated under the Act. Following a public consultation in 2001, the SoS for Defence announced that 16 vessels within UK jurisdiction would be designated as Controlled Sites, 5 vessels in international waters would be designated as Protected Places, and that there would be a rolling programme of identification and assessment to designate all other British vessels meeting the necessary criteria. The National Heritage Act 2002 harmonises the role of the UK heritage agencies by extending the functions of English Heritage to include responsibility for ancient monuments in, on or under the seabed within the territorial sea adjacent to England. Cadw (in Wales) and Historic Scotland already have similar responsibilities in the devolved administrationsix. Secondary Legislation, Guidance and Advice

The primary legislation governing the marine historic environment is currently largely shared by England and Wales. However, it is open to WAG Ministers to

request that different arrangements may apply in Wales, should it be warranted by circumstances particular to Wales. This could be achieved in several ways, including enabling powers for different dates of operation for particular provisions, or separate and different provisions in secondary legislationx. The WAG, however, has yet to exercise this power for the protection of marine archaeological sites in Wales. The WAG has set out the relationship between the historic environment and planning policy in Planning Policy Wales (PPW) (Ch.6). Guidance on listed buildings and conservation areas has been given in Welsh Office (WO) Circulars 61/96 and 1/98. These contain criteria to be used by the Assembly for listing buildings and principles to be used by the local authorities for dealing with applications relating to listed buildings. Guidance on archaeology is given in WO Circular 60/96. The Joint Nautical Archaeological Committee (JNAPC) has drawn up a Code of Practice for Seabed Developers (1995), and the International Council on Monuments and Sites (ICOMOS) has published a Charter for the Protection and Management of the Underwater Cultural Heritage (1996), which aims to ensure the protection or proper excavation, recording and conservation of underwater cultural sites. ADMINISTRATION

A large number of organisations are involved in the planning and management framework for marine archaeology. The DCMS / respective devolved administrations are responsible for overseeing the general legislative and policy framework for protection of the built heritage, for listing buildings of historic interest, and for scheduling ancient monuments. Created in 1984, Cadw: Welsh Historic Monuments carries out the complete range of responsibilities for the conservation, presentation and promotion of the historic environment of Wales on behalf of the Assembly. Unlike English Heritage (EH), Cadw is not a sponsored public body, but is an Executive Agency of the WAG. The UK Government has proposed that statutory responsibility for designating marine sites in English waters be given to EH, given that powers to designate wrecks of historic interest are already held by the other heritage agencies, including Cadw. The Protection of Military Remains Act 1986, which was not intended to safeguard the marine environment, is administered by the MoD. Nevertheless, many sites which could be protected by maritime heritage designations fall under the Act. The Government has proposed that the Act should continue to be used to protect military remains, but where such remains have historic significance, the MoD will agree with the heritage agencies on a case-by-case basis, the best way to protect the assetxi. The Department for Transport (DfT) is responsible for the Merchant Shipping Act 1995. The Maritime

and Coastguard Agency (MCA), which has operational responsibility in these matters, is an executive agency of the DfT and includes the office of the Receiver of Wreck. Box 3 Administrative responsibilities in Wales

Statutory Cadw • Protect, conserve and promote Wales’ heritage • Preservation of ancient monuments and buildings • Grant-aiding repair of ancient monuments and buildings • Issuing Scheduled Monument Consent • Designating wrecks of historic interest Local Planning Authority • Issuing Listed Building Consent for works to historic

buildings • Restrictions on development through enforcement notices,

planning contravention notices, etc. • Designation of Conservation Areas and Officers Countryside Council for Wales • In co-operation with Cadw and ICOMOS UK, has

contributed to the preparation of the Register of Welsh Historic Landscapes

Non-statutory Archaeological Trusts • Four Welsh Trusts maintain the Sites and Monuments

Record • Provide wide-ranging archaeological advice through their

curatorial service Royal Commission on the Ancient and Historical Monuments of Wales (RCAHMW) • Maintains the National Monuments Record • Maintains a database of wreck sites Nautical Archaeological Society (UK-wide) • Promotes awareness and good practice for underwater

archaeological sites through training and publications

Enforcement Receiver of Wreck • Deals with wreck and salvage in the UK • Monitors diving activities in conjunction with MoD Police,

Coastguard and diving organisations • Investigates possible offences associated with protected

wrecks and prosecutes offenders • Shares information with other prosecuting authorities Police and Coastguard • Enforcement agencies, in co-operation with Receiver of

Wreck, for the protection of underwater cultural sites

ISSUES ARISING

UK legislation relating to marine archaeology has evolved incrementally through case law to deal with specific situations, and new protections have been added in a largely reactive fashion. The disparity between the care afforded to important remains on land and those submerged in the territorial sea is becoming increasingly apparent. The 1973 Act which provides the principal protection for underwater cultural heritage is limited in the number of sites designated, and suffers from several shortcomings which primarily stem from its origin as a Private Member’s Bill, intended as a temporary expedient. Recent studies have identified other limitations in the legislationxii,xiii. Consequently, there is a growing awareness of the need for more comprehensive provision for the care of our submerged heritage. The recent Government consultation on protection of the marine historic environment identifies four major areas for improvement:xiv

Simplification: the current regime is complicated, highly selective, and coverage is incomplete. There are gaps and inconsistencies in interpretation, and application of the legislation can be difficult. Openness: processes are often kept confidential (to prevent unwanted publicity), and consultation on the designation of sites has largely centred on the UK-wide non-statutory Advisory Committee on Historic Wreck Sites (ACHWS). Flexibility: the current system adopts a case-by-case approach involving individual consents for each activity which is laborious, and does not take into account wider considerations. Rigour: there are many thousands of undesignated sites which need to be conserved, without devaluing the designation process. To achieve these improvements, the Report suggests a number of changes intended to improve the way the system operates for the benefit of all involved. Key amongst these is the recommendation for a new single statutory definition of marine historic asset to replace the piecemeal nature of the various designations that apply underwater, and that all marine historic assets be subject to some general rules regarding designation, reporting, initial treatment and ownership, but that ‘protection’ be applied only to specific sites that are sufficiently significant to warrant restrictions on activity. Also proposed is a single consent regime for all protected maritime sites. The suggested changes are intended to ensure practical integration of marine and terrestrial historic environment protection on a UK-wide basis, and ensure greater transparency, simplification and understanding of the current system. References i Cadw (2003) Protection of historical assets in Wales: a consultation paper. Cadw, Welsh Assembly Government, September 2003. ii DCMS (2003) Protecting our historic environment – making the system work better. Department for Culture, Media and Sport, July 2003. iii DCMS / WAG / Historic Scotland / DoENI Protecting our marine historic environment: making the system work better. Joint consultation, March 2004. iv Williams, M. (1999) Maritime archaeology – the UK legal structure. In: Report of the Irish Sea Forum Seminar on Marine Archaeology. University of Liverpool, 14 January 1999, p.10. v ibid, p.11. vi op cit, ref (iii), p.12. vii ibid, p.11. viii ibid, p.11. ix ibid, p.16 x op cit, ref (i). xi op cit, ref (ii), p.16. xii JNAPC (2003) The Valletta Convention and heritage law at sea – the legal framework for marine archaeology in the UK. Joint Nautical Archaeological Committee, University of Wolverhampton. xiii Boyes, S. et al. (2003) Deficiencies in the current legislation relevant to nature conservation in the marine environment in the UK. Report to JNCC. Institute of Estuarine and Coastal Studies, University of Hull. xiv op cit, ref (ii), p.9-10.