FINDINGS OF THE PUBLIC CONSULTATION PROCESS
10. In addition to seeking broad comments on the concept of a more proactive protection regime for military wrecked vessels the consultation paper asked for responses to five specific questions:
a. Criteria for designation
b. Form of designation
d. Problems of enforcement
e. Other Sea Users
Criteria for designation (a)
11. The Consultation paper set out criteria, (a) - (d) below, against which future applications for protection could be assessed. The Consultation paper asked for comments on these criteria, including their appropriateness to vessels lying in international waters.
(a) whether or not human remains are known or likely to be present;
(b) whether or not there is evidence of sustained disturbance or looting (and the
strength of such evidence);
(c) whether or not designation is likely to curb or put a stop to such disturbance or
(d) whether or not diving on the vessel or site attracts sustained and significant public criticism or approval.
Designation where these criteria are not met would be unlikely unless some other compelling reason for designation exists.
Public Response: Criteria for designation
12. Contributor's views remain divided.
13. Where this question was answered the majority of comments supported (a). There was limited support for the presence of human remains being the only criteria. Although criteria (b) - (d) attracted some criticism they gained the majority of support. There was some question of the validity of the statement "human remains present" and the alternative wording of "last resting place" was proposed.
14. Proposals were made to add "of historical significance" to the criteria.
15. When determining the suitability for designation (a) should be a major, but not an exclusive consideration. The Act allows for the designation of a vessel and its remains. Restricting the criteria for assessment for designation to only vessels associated with human remains could be argued as fettering the Secretary of State's discretion to designate vessels where some other compelling reason for designation exists. Therefore the criteria should not be restricted.
16. The following recommendations are made:
a. that criteria (a) be amended to include the concept of "last resting place" and the phrase "where lives were lost" replace that of "human remains present".
b. that criteria (b) - (d) should be retained.
c. that an additional criteria (e) taking into account historical significance should be included.
d. that the criteria should be reviewed periodically and published in guidance notes to divers and other sea users and made available to interested parties.
In addition to the above criteria the Secretary of State for Defence should consider other factors, for example safety, when determining the suitability for designation under PMRA.
Form of designation (b)
17. Under the PMRA, vessels can be designated as either Controlled Sites or Protected Places.
a. Controlled Site is a restrictive designation, requiring licensing of certain activities within the exclusion zone and knowledge of precise co-ordinates.
b. Protected Place is one where activities are permitted in the vicinity of a vessel, on a look but don't touch basis. Knowledge of precise co-ordinates is not required, only the name of the vessel.
Public Response: Form of designation
18. Contributors' views remain divided.
19. By far the majority of comments outside commercial or diving interests supported designation as Controlled Sites over Protected Places. Some contributors proposed the implementation of a "100m exclusion zone around all military maritime graves and a moratorium on diving these sites for 100years" but this attracted limited support. The commercial and sport fishing interests strongly lobbied against additional controls or total exclusion zones around wreck sites.
20. The uncertainty over selective designation is of concern, albeit for different reasons, to the majority of contributors. The views of supporters of "War Grave" status are represented in recent correspondence and these views are reiterated in replies to the Consultation paper. In turn, the Diving Associations emphasised the contribution that recreational divers can make within the wider picture of identification and reporting on wrecks, which is of considerable value to the UK Hydrographic Office, MoD and historical and archaeological interests. The Diving Associations role, through self-regulation and educational initiatives, has brought about considerable change in current thinking within the sport.
21. The designation of large numbers of vessels as "Controlled Sites" builds an unrealistic expectation that MoD or the civil authorities will be proactive in the application of protection and enforcement measures. Controlled Sites could, by effectively placing off limits a significant number of zones within UK waters, severely effect commercial/sport fishing activities and those indirect industries, especially those in rural communities which are reliant on diving activities.
22. There appears to be a readiness to support the blanket designation of all military vessels if access on a "look but don't touch" basis was permitted to the majority. Permitting the lawful activities of the majority of recreational divers on the maximum number of sites would recognise the contribution made so far by educational initiatives. Furthermore, blanket protection would provide an unambiguous regime of enforcement of offences against the Act.
23. Although MoD's initial view was that where the site of a vessel was known, that designating the site, as a Controlled Site is preferable to designating the vessel itself because it would be easier to prove an offence in relation to a Controlled Site. In the light of comments received this view has been reviewed.
24. There is a significant lobby in favour of the designation of HMS Prince of Wales and HMS Repulse as Controlled Sites. Designation in international waters would only be enforceable against British citizens and British Flag vessels. The designation of these vessels as Controlled Sites, would not restrict or limit the activities of other nationals, for example, from countries who contributed to the vessels loss but would prohibit relatives who were British citizens from visiting and diving on the sites. It is therefore recommended that when any vessel outside UK jurisdiction is designated that designation take the form of a Protected Place.
25. The following recommendations are made:
a. that a limited number of vessels (16) within UK jurisdiction, be designated as Controlled Sites. These vessels meet the criteria above; are considered to be at risk from unauthorised or intrusive activities, and are representative of all others lost. A list of proposed sites to be designated as Controlled Sites appears at Annex B.
b. that other designations as Controlled Sites will be made if vessels were subject to sustained disturbance or are considered dangerous.
c. that five (5) vessels that lie in international waters be designated now as Protected Places and that a rolling programme of identification and assessment against the criteria be established to designate all other vessels, in military service when lost, as Protected Places.
26. PMRA permits the granting of licences for specified activities within a Controlled Site. A licence may be contained within the Statutory Instrument or published separately. It may specify permitted activities such as recreational diving and commercial fishing. A licence regime could impose conditions preventing interference with any remains. There may be exceptional cases where a licence allowing the unearthing or removal of parts of a wreck, for example if there are good archaeological reasons to allow an investigation.
Public Response: Licensing
27. Contributors' views remain divided.
28. The extent and restrictions proposed by some contributors that may be contained within a licence is in line with the expectation of the number of vessels to be designated as Controlled Sites. Some contributors, who favoured blanket designation as Controlled Sites, also favoured exceptional and highly restrictive diving activities permitted only under licence. Other interests preferred, where a broad licence was included in the Statutory Instrument, that it be granted in favour of organisations representing commercial and diving interests and permitting a broad range of activities.
29. UK membership of the main diving associations is over 500,000. Wreck diving is the predominate activity of divers in UK waters. There is a potential of over one million wreck dives per year. A system of licensing individuals and encompassing all designated vessels would be a cumbersome and bureaucratic mechanism. Licences granted to groups or organisations raises questions of compliance and enforcement outside the constitution of most diving associations and would not cater for non-association members.
30. The following recommendations are made:
a. that licences be required for activities directed at the small number of proposed Controlled Sites. (Diving on Protected Places would not require prior authorization other than, for archaeological surveys, or where activities were directed at the protected vessel).
b. that assessments of applications for licences for activities on Controlled Sites be made on a case-by-case basis and limited to appropriate activities.
c. that licensing charges be introduced if a significant number of Controlled Sites are designated.
Problems of Enforcement (d)
31. Wrecked British military vessels remain the property of the Crown regardless of their current location or condition and ownership is not lost with the passing of time. In the absence of the designation of military vessels under the PMRA, reliance would be placed on prosecutions under; for example, the reporting of finds provisions of the Merchant Shipping Act 1997(MSA). Designation under PMRA would make the disturbance and removal of items from such military wrecks illegal and provide the Ministry of Defence Police and civil authorities with powers to prosecute.
Public Response: Enforcement
32. Contributors' views remain divided.
33. Of those who commented on this question the majority supported enforcement of the powers under PMRA. Some favoured amendments to the Act by increasing the sanctions to a minimum fine of £5000. Others proposed custodial sentences. These expectations exceed the statutory maximum fine as set out in the Act and would require amendment to the legislation and Parliamentary approval. Sanctions for offences under the Act in relation to wrecked vessels have yet to be tested in the Courts. It would not be appropriate, in the absence of proof that existing sanctions are unlikely to prove an adequate deterrent, to seek amendment at this stage.
34. There was general agreement that there will be difficulties in enforcing existing provisions within the PMRA. Some contributors proposed the use of operational Naval vessels to monitor and patrol designated sites both in UK and international waters. Education initiatives including coastal information boards and marker buoys over designated sites were suggested to aid enforcement authorities and raise public awareness.
35. The Diving Associations believe their membership can aid, through existing educational initiatives and peer pressure within dive clubs, compliance with the Act. Most diving associations have existing mechanisms to expel members who bring the Associations in to disrepute and there is a willingness to enforce this policy within the Diving Associations.
36. There was some recognition of the difficulties with the enforcement of sanctions directed at the activities of British Citizens operating in international waters. There was an expectation that provisions under the UNESCO Convention on the Protection of Underwater Cultural Heritage would provide global protection of these and other vessels.
37. There is general recognition of the immense difficulties in providing evidence of offences committed under the PMRA. The majority considered the act of designating vessels would provide a substantial deterrent in itself.
38. The following recommendations are made:
a. that appropriate civil authorities be advised of forthcoming designations.
b. that the feasibility of supplying information panel at coastal locations providing details of designated Controlled Sites should be examined.
c. that guidance notes to divers and other sea users be published and made available to interested parties.
Other Sea Users (e)
39. It has been necessary to consider the legitimate interests of fishermen and other sea users and to ensure that designation does not inadvertently render any reasonable, non-diving activity unlawful. It could be argued that, without a licence, a trawlerman whose nets become entangled with, or boatman who drops anchor on, a vessel in a Controlled Site would be committing an offence. Designation would not prevent the free passage by shipping through the site.
Public Response: Other sea users
40. Contributors' views remain divided.
41. This question was not addressed by many contributors. Of those that did, the majority supported the continuation of existing commercial and sport fishing practices.
42. Some contributors advocated that scientific research in to marine life and ecological habitats should not be subject to stringent controls.
43. The limited number of Controlled Sites proposed is likely to have a negligible effect on current commercial/fishing activities.
44. The following recommendation is made:
a. that a licensing regime permitting lawful commercial non-diving activities should be established if in the future a significant number of designations as Controlled Sites becomes necessary.