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 recovered material continues to be determined by The World Heritage Convention, adopted by the law of salvage. UNESCO in 1972, links the concepts of nature The International Convention on Salvage 1989 is conservation and preservation of cultural heritage and incorporated into UK law by s.224 of the Merchant defines the kind of sites that can be considered for Shipping Act 1995. This effected a modernisation of inclusion on the World Heritage List. By signing the commercial salvage law, but voluntary salvage, where Convention, each country pledges to conserve not the salvor does not act under a contractual obligation only the World Heritage Sites situated within its (the normal case in maritime archaeology), retained territory, but also to protect its national heritage. most of its essential characteristicsv. The Act also has The International Convention on Salvage 1989 implications for the reporting of recovered replaced the earlier Brussels Convention on the law of archaeological material. Any items, regardless of age, salvage. Among the key changes introduced was the importance or ownership, recovered from UK creation of an enhanced salvage award. This territorial waters, or is landed in the UK from outside compensates salvors who have failed to earn a reward territorial waters, must be reported to the Receiver of in the normal way (by salving the ship and cargo) but Wreck. have, through their efforts, minimised or prevented The UK has reserved its right not to apply the Salvage damage to the environment. Convention where marine cultural property is involved, although this right has not yet been The Valetta Convention entered into force on 21 vi March 2001, and contains provisions for the exercised . identification and protection of archaeological Box 2 Key UK primary legislation heritage, its integrated conservation, the control of excavations, the use of metal detectors, and the Merchant Shipping Act 1995 (s.224 and s.236) prevention of illicit circulation of archaeological Merchant Shipping and Maritime Security Act 1997 objects, as well as for dissemination of information. (s.24) The Convention defines the archaeological heritage Protection of Wrecks Act 1973 very broadly, beyond the terms of current UK ancient Ancient Monuments and Archaeological Areas Act monuments, historic buildings and maritime heritage 1979 legislation. It requires signatory States to make Protection of Military Remains Act 1986 provision for the maintenance of an inventory of National Heritage Act 2002 “archaeological heritage” and for the designation of Planning (Listed Buildings and Conservation Areas) protected monuments and areas. It also recommends Act 1990 (Does not apply below low water mark - LWM) the creation of archaeological reserves. Town and Country Planning Act 1990 (Does not apply Box 1 Key International and European legislation below LWM) Transport and Works Act 1992 The Convention Concerning the Protection of the World Cultural and Natural Heritage – the World Water Industry Act 1991 (s.3.2(b)) Heritage Convention Electricity Act 1989 (Sch.9, s.38) The International Convention on Salvage 1989 (Both of the above Acts require operators to have regard for the protection of archaeological heritage) The European Convention on the Protection of the Archaeological Heritage (Revised) 1992 – the Valletta Convention Designation legislation Council Directive 93/7/EEC (as amended by The principal protection for underwater heritage in 2001/38/EC) on the Return of Cultural Objects the UK’s territorial waters is provided by the Unlawfully Removed from the Territory of a Member Protection of Wrecks Act 1973. The Act was intended State as a temporary expedient, but has become the Article 87(3)(d) of the Maastricht Treaty authorises mainstay for protecting underwater cultural heritage. Member States to provide aid for economic operators Section 1 of the Act empowers the Secretary of State in order to promote culture and heritage (SoS) for Culture, Media and Sport and the WAG to conservation designate the site of a vessel of historical, archaeological or artistic importance lying wrecked in UK MARINE HERITAGE LEGISLATION or on the seabed as a “restricted area”. There are vii Salvage law currently 54 such sites designated under the Act . The recovery of property from the sea, irrespective of The Act is administered in Wales by Cadw. its antiquity, is governed in the UK by the law of Additionally, under s.2 of the Act, a “prohibited area” salvageiv. Consequently, while a few amendments to may be designated around the site of a wreck, the the salvage regime have been introduced to take contents of which make it a potential danger to life or account of the particular nature of archaeological property. Section 2 of the Act is administered by the material, the rights and duties of the participants in Maritime and Coastguard Agency (MCA), through the marine archaeological process, and the disposal of the Receiver of Wreck. The Merchant Shipping and Maritime Security Act request that different arrangements may apply in 1997, s.24, empowers the Secretary of State for Wales, should it be warranted by circumstances Transport to make orders implementing international particular to Wales. This could be achieved in several agreements on the protection of wrecks outside UK ways, including enabling powers for different dates of waters. Orders may designate wrecks or areas where operation for particular provisions, or separate and they are situated, may prohibit or restrict access or different provisions in secondary legislationx. The interference with them, and may provide for licensing WAG, however, has yet to exercise this power for the and enforcement. protection of marine archaeological sites in Wales. Under the Ancient Monuments and Archaeological The WAG has set out the relationship between the Areas Act 1979, which consolidates and amends historic environment and planning policy in Planning measures dating back to 1882, the WAG (through Policy Wales (PPW) (Ch.6). Guidance on listed Cadw) compiles a Schedule of ancient monuments of buildings and conservation areas has been given in national importance, categorised into ten principal Welsh Office (WO) Circulars 61/96 and 1/98. These groupings. In a maritime context, sites on the seabed contain criteria to be used by the Assembly for listing within territorial waters can be scheduled under the buildings and principles to be used by the local Act if they comprise a building, structure or work, or authorities for dealing with applications relating to any vehicle, vessel, aircraft or moveable structure that listed buildings. Guidance on archaeology is given in is of public interest by virtue of its historic, WO Circular 60/96. architectural, traditional, artistic or archaeological The Joint Nautical Archaeological Committee interest, provided it is not already designated under (JNAPC) has drawn up a Code of Practice for Seabed the Protection of Wrecks Act 1973. The wreck of the Developers (1995), and the International Council on Louisa in Cardiff Bay was scheduled under the Act Monuments and Sites (ICOMOS) has published a because following construction of the Barrage, the Charter for the Protection and Management of the remains were in inland waters and could not be viii Underwater Cultural Heritage (1996), which aims to designated under the 1973 Act . ensure the protection or proper excavation, recording The primary objective of the Protection of Military and conservation of underwater cultural sites. Remains Act 1986 is to prevent disturbance of human remains still present in military aircraft and vessels. ADMINISTRATION The Act applies to both UK and international waters, A large number of organisations are involved in the but foreign vessels may only be designated within UK planning and management framework for marine waters. The regulatory framework of the Act works archaeology. The DCMS / respective devolved upon the concepts of “Protected Places”, administrations are responsible for overseeing the “Controlled Sites” and the prohibition of certain general legislative and policy framework for excavations. Divers may visit a Protected Place on a protection of the built heritage, for listing buildings of “look but don’t touch” basis, but are prohibited from historic interest, and for scheduling ancient visiting Controlled Sites. The Act is administered for monuments. the UK as a whole by the Ministry of Defence (MoD). Created in 1984, Cadw: Welsh Historic Monuments Historic significance is one of the criteria under which carries out the complete range of responsibilities for vessels can be designated under the Act. Following a the conservation, presentation and promotion of the public consultation in 2001, the SoS for Defence historic environment of Wales on behalf of the announced that 16 vessels within UK jurisdiction Assembly. Unlike English Heritage (EH), Cadw is not would be designated as Controlled Sites, 5 vessels in a sponsored public body, but is an Executive Agency international waters would be designated as Protected of the WAG. The UK Government has proposed that Places, and that there would be a rolling programme statutory responsibility for designating marine sites in of identification and assessment to designate all other English waters be given to EH, given that powers to British vessels meeting the necessary criteria. designate wrecks of historic interest are already held The National Heritage Act 2002 harmonises the role by the other heritage agencies, including Cadw. of the UK heritage agencies by extending the The Protection of Military Remains Act 1986, which functions of English Heritage to include responsibility was not intended to safeguard the marine for ancient monuments in, on or under the seabed environment, is administered by the MoD. within the territorial sea adjacent to England. Cadw Nevertheless, many sites which could be protected by (in Wales) and Historic Scotland already have similar ix maritime heritage designations fall under the Act. The responsibilities in the devolved administrations . Government has proposed that the Act should continue to be used to protect military remains, but Secondary Legislation, Guidance and where such remains have historic significance, the Advice MoD will agree with the heritage agencies on a case- xi The primary legislation governing the marine historic by-case basis, the best way to protect the asset . environment is currently largely shared by England The Department for Transport (DfT) is responsible and Wales. However, it is open to WAG Ministers to for the Merchant Shipping Act 1995. The Maritime and Coastguard Agency (MCA), which has Simplification: the current regime is complicated, operational responsibility in these matters, is an highly selective, and coverage is incomplete. There executive agency of the DfT and includes the office are gaps and inconsistencies in interpretation, and of the Receiver of Wreck. application of the legislation can be difficult. Box 3 Administrative responsibilities in Wales Openness: processes are often kept confidential (to prevent unwanted publicity), and consultation on the Statutory designation of sites has largely centred on the UK- Cadw • Protect, conserve and promote Wales’ heritage wide non-statutory Advisory Committee on Historic • Preservation of ancient monuments and buildings Wreck Sites (ACHWS). • Grant-aiding repair of ancient monuments and buildings • Issuing Scheduled Monument Consent Flexibility: the current system adopts a case-by-case • Designating wrecks of historic interest approach involving individual consents for each Local Planning Authority activity which is laborious, and does not take into • Issuing Listed Building Consent for works to historic account wider considerations. buildings • Restrictions on development through enforcement notices, Rigour: there are many thousands of undesignated planning contravention notices, etc. sites which need to be conserved, without devaluing • Designation of Conservation Areas and Officers Countryside Council for Wales the designation process. • In co-operation with Cadw and ICOMOS UK, has To achieve these improvements, the Report suggests a contributed to the preparation of the Register of Welsh Historic Landscapes number of changes intended to improve the way the Non-statutory system operates for the benefit of all involved. Key Archaeological Trusts amongst these is the recommendation for a new single • Four Welsh Trusts maintain the Sites and Monuments statutory definition of marine historic asset to replace Record the piecemeal nature of the various designations that • Provide wide-ranging archaeological advice through their curatorial service apply underwater, and that all marine historic assets Royal Commission on the Ancient and Historical be subject to some general rules regarding Monuments of Wales (RCAHMW) designation, reporting, initial treatment and • Maintains the National Monuments Record ownership, but that ‘protection’ be applied only to • Maintains a database of wreck sites Nautical Archaeological Society (UK-wide) specific sites that are sufficiently significant to • Promotes awareness and good practice for underwater warrant restrictions on activity. Also proposed is a archaeological sites through training and publications single consent regime for all protected maritime sites. Enforcement The suggested changes are intended to ensure Receiver of Wreck • Deals with wreck and salvage in the UK practical integration of marine and terrestrial historic • Monitors diving activities in conjunction with MoD Police, environment protection on a UK-wide basis, and Coastguard and diving organisations ensure greater transparency, simplification and • Investigates possible offences associated with protected wrecks and prosecutes offenders understanding of the current system. • Shares information with other prosecuting authorities Police and Coastguard References • Enforcement agencies, in co-operation with Receiver of i Cadw (2003) Protection of historical assets in Wales: a Wreck, for the protection of underwater cultural sites consultation paper. Cadw, Welsh Assembly Government, September 2003. ii DCMS (2003) Protecting our historic environment – making the ISSUES ARISING system work better. Department for Culture, Media and Sport, July 2003. UK legislation relating to marine archaeology has iii DCMS / WAG / Historic Scotland / DoENI Protecting our evolved incrementally through case law to deal with marine historic environment: making the system work better. specific situations, and new protections have been Joint consultation, March 2004. iv Williams, M. (1999) Maritime archaeology – the UK legal added in a largely reactive fashion. The disparity structure. In: Report of the Irish Sea Forum Seminar on Marine between the care afforded to important remains on Archaeology. University of Liverpool, 14 January 1999, p.10. v land and those submerged in the territorial sea is ibid, p.11. vi op cit, ref (iii), p.12. becoming increasingly apparent. The 1973 Act which vii ibid, p.11. provides the principal protection for underwater viii ibid, p.11. cultural heritage is limited in the number of sites ix ibid, p.16 x op cit, ref (i). designated, and suffers from several shortcomings xi op cit, ref (ii), p.16. which primarily stem from its origin as a Private xii JNAPC (2003) The Valletta Convention and heritage law at Member’s Bill, intended as a temporary expedient. sea – the legal framework for marine archaeology in the UK. Recent studies have identified other limitations in the Joint Nautical Archaeological Committee, University of xii,xiii Wolverhampton. legislation . Consequently, there is a growing xiii Boyes, S. et al. (2003) Deficiencies in the current legislation awareness of the need for more comprehensive relevant to nature conservation in the marine environment in the provision for the care of our submerged heritage. The UK. Report to JNCC. Institute of Estuarine and Coastal Studies, University of Hull. recent Government consultation on protection of the xiv op cit, ref (ii), p.9-10. marine historic environment identifies four major areas for improvement:xiv